And so, with the regular season almost upon us, baseball goes once more to war against steroids and ultimately itself.
Those who have been following the sport over the winter will remember -- indeed, will not have been allowed to forget -- the sensational, damning, and entirely circumstantial revelations surrounding the Miami "anti-aging" clinic Biogenesis and its director, Anthony Bosch. The Broward-Palm Beach New Times first published their piece on Bosch's alleged large-scale, comprehensive doping ring on the last day of January and in the month and a half since, the report's allegations against Alex Rodriguez, Ryan Braun, Melky Cabrera, and other already-embattled major league stars have hung over the sport as players made their way to camp and competed in the World Baseball Classic, all the while waiting for the guillotine to drop.
It appears to be on its way down: last week, Detroit Tigers minor league player Cesar Carillo was suspended for 100 games for "violations of the minor league drug prevention and treatment program," according to Major League Baseball. What Carillo was actually disciplined for, TJ Quinn of ESPN and others reported less than 24 hours later, was not for failing a specific drug test or violating any specific component of the treatment program, but for having his name linked to the Biogenesis clinic in the initial media reports and for lying to MLB investigators about knowing Anthony Bosch. Each of those "violations" was worth a 50 game suspension in the league's eyes.
Baseball's not about to stop there, of course. Carillo's punishment was neither an isolated case nor a final word on the Biogenesis scandal: it was an opening salvo. MLB is coming after everyone connected to the clinic whom they believe violated baseball's policy against performance enhancing drugs --regardless of whether or not they have any hard proof the players used banned substances, or even if the evidence linking their names to Biogenesis is legitimate in the first place.
The centerpiece of the New Times's entire report, and the bulk of the public case against all of the MLB athletes whose names are attached to it, is a single spreadsheet supposedly created and maintained by Bosch himself as a sort of ledger of his activities. The original story describes the spreadsheet as opening with a "listing of local developers, prominent attorneys, and personal trainers," followed by "a lengthy list of nicknames: Mostro, Al Capone, El Cacique, Samurai, Yukon, Mohamad, Felix Cat, and D.R."
Bosch was apparently unaware of the point of giving his clients nicknames, it seems, because one column over the spreadsheet lists all the real names of the baseball players he was allegedly supplying, and then to the right of that, the specific drugs and products those players bought from him. All in all, it is an immensely stupid document to keep lying around on any PC where a disgruntled employee can find it and e-mail it to a local reporter, but that in and of itself isn't any real argument against its authenticity: when it comes to computers and electronic security, people are notoriously lazy with their personal information in all sorts of dangerous ways, and alleged doping-ring kingpins are just as likely to write down things they shouldn't as the rest of us.
The problem is that, well, it's a spreadsheet. Anyone can type up a spreadsheet. Anyone can mess up what they type on a spreadsheet. One can reasonably infer that the Alex Rodriguez mentioned in the spreadsheet is the Yankees slugger -- who else could it be? -- but the fact of the matter is that it could be literally anyone named Alex Rodriguez, two not-uncommon names. The evidence the spreadsheet presents is entirely circumstantial. It offers many implications that in the presence of other, harder facts would be damning, but in and of itself it doesn't prove a thing. That so many of the players on the list have been attached to PED scandals in the past works just as much against the spreadsheet's credibility as it does for it, if the primary purpose of the document in Bosch's eyes wasn't to record actual transactions but to instead casually impress new, illicit clients with his flashy, well-known clientele. After all, how would the prospective cheater verify whether or not Ryan Braun actually got his supposed drugs from the Biogenesis clinic? Ask him?
Does that seem like a far-fetched interpretation of the spreadsheet's purpose? Of course it does. It's also one that the players' MLBPA representation is sure to bring up when the hammer comes down. Unlike the unfortunate Cesar Carillo, all of the players that Major League Baseball is really after --Rodriguez, Braun, Cabrera, Texas's Nelson Cruz -- are afforded the full protection of the league's Player's Union. That means suspending them for nebulous offenses like allegedly lying to investigators or having their name on a list on some Florida scam artist's PC isn't going to fly. There is a specific set of guidelines laid down by the new Collective Bargaining Agreement and the MLB Joint Drug Policy for how, how long, and why players can be suspended for violating MLB's drug policy. Statement suspensions like Carillo's aren't going to cut it, and will land the entire process in grown-up, real-world court.
Page 48 of the new CBA states that "a Player may be subjected to disciplinary action for just cause by his Club, the Senior Vice President, Standards and On-Field Operations or the Commissioner." The concept of "just cause" is an actual principle in US labor contract law, and it does not mean "whatever the employer deems reasonable." In brief, the employer has to show the employee violated a company policy or rule with a reasonable amount of proof, and demonstrate that they are not acting in a discriminatory or prejudicial way in disciplining the employee. Note that the standards here are not the same as in criminal law; an employee can be disciplined for just cause without violating the specific letter of the company policy, so long as an arbitrator determines that it is reasonable to believe that the employee should have known the conduct would be punishable based on existing company policy. Scanning through the rest of the CBA, there is no mention of the league's drug policy or the penalties for violating it; that information is contained in MLB's Joint Drug Agreement.
The Joint Drug Agreement's provisions for the use of PEDs are succinct and clear. Page 22, Article 7, Section A reads: "A Player who tests positive for a Performance Enhancing Substance, or 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; …"
Under the exact letter of the JDA, MLB's investigation would have had to have turned up far more substantial evidence of PED use stemming from Anthony Bosch and Biogenesis than is publically known for any of these punishments to apply -- having one's name appear on a spreadsheet is, to no reasonable arbitrator or judge, evidence of "use or possession of a Performance Enhancing Substance." If MLB has recovered a personal check from a player or one of his agents to Bosch or his clinic, or a signed receipt of delivery from a shipment originating from the Biogenesis offices in Miami to a player's house or, even worse, an MLB clubhouse, then things become substantially less murky. But there has to be more than just a name in a file somewhere for these provisions to kick in. Should MLB move forward with proceedings against the named players, however, we should know what that evidence is in due time; the CBA outlines that the players and their representatives will be allowed to see all evidence arrayed against them before any hearings through a process known as "discovery," and it's all but certain that information will leak out.
There's a possibility, however, that the league's case will not hinge on an interpretation of the JDA at all. While the CBA never mentions the MLB drug policy, there is another relevant section of the disciplinary article on Page 49: Section B., "Conduct Detrimental or Prejudicial to Baseball." This section reads in part:
"Players may be disciplined for just cause for conduct 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."
The argument here would be that by the mere act of appearing in the spreadsheet and, in at least Alex Rodriguez's case, allegedly consorting with Anthony Bosch, the players have done material harm to baseball's reputation and standing in the community, as well as damaged the integrity of the product that MLB provides its fans on the field. The MLBPA would likely respond by pointing out that if the league finds no reason to invoke this clause against drunk drivers both inside the Player's Union and out, there's very little ground to stand on invoking it against showing up in a spreadsheet, but the league would respond that a legal violation is not a necessary component for just cause and that causing fans to question the integrity of a player's on-field performance is a far more material harm to MLB than fans questioning their judgment in a motor vehicle.
There is one other component to the case that the MLBPA is sure to bring up: the league's motives. Revenge is generally not an acceptable reason to discipline an employee, especially not revenge stemming from the employee successfully appealing a previous attempt to discipline him. The zeal with which the MLB appears to be ready to come after Ryan Braun, however, despite not having a new failed drug test or a specific policy violation to punish him under, will certainly factor into his defense. It'd be surprising if Alex Rodriguez's representation didn't argue that the league was trying to punish him for past misdeeds it was unable to discipline him for as well, considering that his admissions of PED use back in 2009 was confined to a time before the implementation of the current JDA and testing regime.
Regardless, MLB's new offensive against its own players will hinge on the evidence they present, evidence that right now we know nothing about -- except that it will not include documents obtained from the New Times investigation into the Biogenesis clinic. MLB's investigators approached the New Times to request those documents after the original story broke and were denied access to them by the paper. This does not mean they don't have a copy of the infamous spreadsheet, of course, just that they'd have to have gotten it from somewhere else. It also confirms what we could already reasonably suspect: that the case the MLB presents will be different from the one presented in public by the New Times, and likely expanded. The MLB may very much want to punish Braun, Rodriguez, and anyone else who they've suspected for awhile but were unable to nail to the wall -- but there was a reason Braun's case last year was the first ever overturned on appeal. When MLB investigators bring a case against a player, they generally make sure they've done their legwork and their homework. The players could be in for a serious fight.
For the fans, though, it'll be just another unwelcome, very public distraction from the reason they give the league and its players so much money: the actual act of playing baseball. One hopes the league is gearing up for action because they have airtight cases to act on, instead of trying to publically send a message. It's a necessary one, but everyone's sick and tired of it.