THE LIBERATION OF P.K. SUBBAN By Michael – Louis...
MLB’S LEGAL PROCESS OF A-ROD SUSPENSION SMACKS OF ILLEGALITY
By Diane M. Grassi
The phrase, the ‘Best Interests of Baseball’ connotes a type of exclusive legislative decision emanating from a wide-ranging power presiding over the game of professional baseball
Such a ruling has been utilized many times by many former commissioners of Major League Baseball (MLB), including by its current commissioner, Bud Allen Selig.
Going way back to baseball team owners’ appointment of Judge Kenesaw Mountain Landis, its first commissioner following the 1919 Black Sox scandal, the ‘best interests’ power was intended to retain the integrity of the game.
Yet, what often gets lost in baseball’s history is that eight White Sox players had been exonerated and found “not guilty” in 1921, by jury trial, for their indictments of “intent to defraud the gambling public.” Following that court decision, Landis was given carte blanche on behalf of team owners of the major leagues, to craft a set of rules and guidelines that would serve as the ethical foundation for baseball going forward.
Commissioner Landis chose to suspend all eight White Sox players, for life, for their alleged involvement in gambling on baseball, regardless of the trial’s outcome. And most would agree that it was Bart Giamatti’s suspension of Pete Rose in 1989, for betting on his baseball team as manager of the Cincinnati Reds, which was the next critical decision meted out by a commissioner.
Landis took his role seriously and not unlike Giamatti, both remain associated with gambling in baseball. Their punishments included eliminating Baseball Hall of Fame consideration for those eight White Sox players as well as for Pete Rose.
Commissioner Landis believed and most probably Commissioner Giamatti as well, that he was “discharging a public trust and representing baseball lovers of America.” In his attempts at cleaning up the game, Landis stood by the courage of his convictions. He was neither beholden to billions of dollars on the line nor driven by personal vendettas, but rather because he was a man of the law throughout his life, he wanted to do that which was right, versus an allegiance to power brokers.
Back in 1920, there was no Collective Bargaining Agreement (CBA) between multi-million dollar ballplayers and multi-billion dollar owners, who by rule fight over shares of prosperity. There was not the necessity to negotiate every few years a complex Basic Agreement (BA), in addition to a Joint Drug Agreement (JDA), between MLB on behalf of its 30 team entities and the Major League Baseball Players Association (MLBPA), representing its players.
Gambling and the use of narcotics, such as cocaine, had been the proverbial third rails which previously tested the integrity of MLB. And not until MLB and the MLBPA, mainly over the past decade, through the JDA, also collectively bargained, were parameters set in an attempt to clean up the game, once again. During the Steroid Era as its now termed, no prohibitions were in place, and largely by design.
Finally in 2003, a decision was made to introduce drug testing, which was fully in place by 2005. It has been tweaked a few times since with the latest tweak in 2013 to include a blood test for human growth hormone (HGH), during spring training. The drug testing was collectively bargained between MLB and its union of players and was the basis for the JDA and the arbitration appeals process. It was, however, as if the Steroid Era had never existed, which has been documented as far back as the mid-1980’s.
And through the decades the ‘best interests’ power bestowed upon the commissioner of MLB has leant itself to cover a wide swath of issues. Most recently there has been much confusion through MLB fandom as well as within its own rank file on how the Biogenesis case fits into both the commissioner’s ‘best interests’ power and with regard to the JDA.
The JDA of 2011 stipulates explicit player suspensions for a positive drug test for specific Performance Enhancing Substances (PES) taken by active players on the 40-man roster. Yet, the 13 players suspended over the Biogenesis lab case did not test positive for use of PES, but rather it was the judgment of the commissioner and his ‘best interests’ power, based on circumstantial evidence which wrought the suspensions.
That brings us to the seemingly unending saga specific to Alex Rodriguez, famously known as A-rod; the once undisputed golden boy who would hopefully break Barry Bond’s homerun record, the right way. Amid A-rod’s limited prior admission in 2009 of having used PES from 2001-2003, during his time with the Texas Rangers, following his public denials in 2007, puts him on shaky ground for his truthfulness. Additionally, A-rod was on the list of 103 positive tests used by MLB in 2003, which formed the basis of the JDA and its recommended drug suspensions.
Those positive tests of players from 2003, which were to have remained confidential, however, were immune from punishment. Yet, there were a laundry list of other MLB players of the 103 and post-2003 who either fessed up about using PES, either through BALCO grand jury testimony or those who came clean on their own and still others who eventually tested positive. Manny Ramirez, Melky Cabrera, Barry Bonds, Mark McGuire, Jason Giambi, Rafael Palmeiro, fit into one or other of those categories, and come to mind.
But just like most things A-rod, his issues in 2013 as concerns Biogenesis and its owner, Anthony Bosch, dominated all other players’ stories. And because he is A-rod, he is indeed treated differently. That, however, was not the intent of collective bargaining nor arbitration, which ultimately sealed Rodriguez’ fate.
Rather than to go into the minutiae of the Biogenesis case, as documented predominantly by the Miami Times, in addition to other major news organizations, there are some rather egregious main issues that have yet to get much emphasis by those either in the mainstream press or in the legal sports media. And those issues have left many MLB fans still scratching their heads.
The arbitration process, mandated through the JDA, collectively bargained between MLB and the MLBPA, requires a selected, mutually agreed upon arbitrator who presides over appeals for player suspensions issued by the commissioner.
In the case of Biogenesis, out of the 13 players suspended for alleged use of PES, all suspensions were based upon circumstantial evidence and/or admission of said use by the player and not from positive drug tests. But the JDA does not specifically provide for punishment with this set of circumstances and based upon that, A-rod appealed his suspension.
Alex Rodgriguez’ original 211 day suspension in 2013 was decided by the commissioner, who supposedly was also considering his lifetime ban from baseball. Due to the blurred lines between prescribed punishment for positive drug tests and anecdotal evidence not addressed by the JDA, Selig’s suspension came under his ‘best interests’ power. And since the arbitration process in this case lacked transparency, a usual court hearing or trial would be subject to, there remains ever more speculation of impropriety.
To wit, Ryan Braun of the Milwaukee Brewers, who accepted a 65 game suspension during the 2013 season, was following a dirty test from the 2011 season, which he overcame due to a technicality in the transfer of his drug sample. Braun could have received a 50 game suspension according to the JDA in 2012, if implicated. In the case of Biogenesis, he somehow received a 65 game suspension during the 2013 season. Jhonny Peralta of the Detroit Tigers, was issued a 50 game suspension for his involvement with Biogenesis, which he served in 2013, but was eligible to play in the post-season for Detroit, as he did.
A-rod’s initial suspension was equally, if not more-so, as arbitrary as his fellow players’, all based upon hearsay, specious evidence and because of the player he is. And the legal definition of arbitrary? “That not supported by fair or substantial cause or reason.”
The course that the MLB-Alex Rodriguez arbitration process took, followed a series of lawsuits filed by: MLB against Biogenesis America, LLC in 2013, two lawsuits filed by Alex Rodriguez against MLB in 2013 and 2014, and a separate lawsuit filed by Alex Rodriguez against the MLBPA in 2014.
The A-rod lawsuits filed against MLB remained separate, as decided in a court hearing and the lawsuit against the MLBPA for insufficient union representation during the pre and post-arbitration process, came as a result of that which was within reason by A-rod. Ultimately, Rodriguez dropped his lawsuits, on the advice of legal counsel after the arbitration process was complete and he had time to reconsider his options. And MLB also dropped its lawsuit against Biogenesis after it got the cooperation it desired of of its owner, Anthony Bosch.
The overriding opinion throughout MLB, management, its players, its union and the sports media has been predominantly against Alex Rodriguez, both during and post-arbitration. Yet, Braun, Peralta, Cabrera and others of the aforementioned players, are welcomed back, given or retained multi-million dollar contracts or even allowed to become a hitting coach say for the St. Louis Cardinals or for the Los Angeles Dodgers.
But very much lost in the story is the confidentiality, during the initial discovery process by MLB and even during the actual arbitration, when intentional leaks to the press were made on a continual basis and unsubstantiated claims were made in violation of the JDA by MLB.
Myriad reports from the NY Daily News, Sports Illustrated, the NY Times, to name only a few publications, received leak after leak from MLB prior to and during the arbitration process; thereby discrediting the whole process. Bud Selig himself appeared on CBS’ 60 Minutes prior to the arbitration decision. And equally disturbing was the way in which MLB gathered its so-called evidence, largely anecdotal.
It was the free weekly newspaper the Miami Times, after all, which single-handedly spearheaded the Biogenesis lab, of ill-repute, wide open in 2013, publishing many reports detailing Anthony Bosch, and his criminal acts in concert with MLB players.
Much to MLB’s dismay, the Miami Times could not be bought off for its own investigative work and documentation of the Biogenesis lab. But that did not deter MLB from paying off potential witnesses and threatening others who both worked for or associated with Anthony Bosch, by MLB’s assembled team of former FBI, CIA, and government law enforcement operatives, used to dressing down criminals.
But the extent that MLB went to, particularly to nail A-rod, more resembled the behavior of organized crime bagmen than that expected of the institution of MLB. The lengths that MLB went to even included indemnifying Anthony Bosch, offering to pay for and yielding influence on any civil litigation which may arise against him, and legal services for civil as well as criminal charges which may result from the ongoing FBI investigation against him. Additionally, MLB offered Bosch 24/7 security services, and paid for his relocation. They had a pay-for-play arrangement going on in the hundreds of thousands of dollars that would make many a politician blush.
Anthony Bosch practiced medicine without a license, illegally purchased, distributed, dispensed and administered prescription medications, including controlled substances, and most probably will be getting a call from the IRS for tax evasion for his “cash” business. Therefore, it is stunning that MLB would essentially harbor a criminal for months to exploit the troubles of one its own players.
The current river of deceit flowing from MLB has unfortunately set an even lower bar for the next MLB commissioner to take over, after Selig’s grand exit following this 2014 season. We all now know that the riches that MLB enjoys, in the $10 billion annual revenue range, was built upon the backs of the pill-popping, needle poking crowd of MLB anabolic steroid users, primarily after the 1994 strike-plagued season.
But it cannot be emphasized enough that not only was it so-called cheating, which MLB totally ignored, but illegal use of prescription medication and their abuse, both violations of federal drug laws, and simply lost on everyone was MLB’s complicity of such.
MLB still to this day, primarily through Commissioner Selig’s touts as the cleanest of all professional sports leagues remains laughable, at best. MLB has been dishonorable and equivocates with its use of its ‘best interests’ power, depending upon its mood.
Additionally, the MLBPA did do a rather poor job of explaining to A-rod and his attorneys that which were his alternatives, rather than piling on as it did. And ultimately, when it came to the arbitration decision Judge Horowitz issued, he used the so-called ‘just cause’ section of the JDA, rather than the specific punishment mandated in the JDA for drug offenses, when all was said and done.
Furthermore, the idea that active players are supposedly now vigilante about “cleaning up baseball,” with few exceptions, yet welcome back dirty players of the past to both the playing field and coaching positions, smacks of hypocrisy. And all drug cheats are still not exempt from Hall of Fame consideration.
Two or possibly up to three urine/drug tests a year is now the norm along with an HGH blood test during early spring training. The HGH test began in 2013, and remains unreliable. The first urine test of the season is also in early spring training followed by a second test during the season. Very few random tests in the off-season are administered with the possible exception of previous offenders. This is hardly the strong-armed deterrence that MLB makes it out to be, especially with rewards waiting for its noted offenders.
A-fraud, as A-rod is known in some MLB circles, is not the problem. Rather, it is MLB’s duplicitousness and continuing hunger for the big bucks over the past couple of decades that has created its problems. And that must be questioned by the press and especially by baseball fans that buy the tickets, buy concessions, pay for parking, pay for cable TV, purchase merchandise and MLB multi-media platforms.
MLB has essentially been without accountability and has been steering off-course since Bud Allen Selig took the helm in 1992. For MLB is no longer about its ‘best interests’ but rather its bank, regardless of whether or not its revenue is accrued with clean hands.
Copyright ©2014 Diane M. Grassi