ESPN Reports PED Suspensions Coming Soon
ESPN.com today reported that MLB is planning to suspend as many as 20 players, including most notably Alex Rodriguez and Ryan Braun, for using performance enhancing drugs supplied by Biogenesis of America. Here is the full article if you want the details.
According to the report, Biogenesis’ principal Tony Bosch has agreed to spill the beans to MLB in exchange for MLB’s agreement to drop its lawsuit against Bosch (which may lack merit, but which Bosch cannot now afford to contest), indemnify Bosch against any liability arising out of his cooperation (i.e., MLB will foot the bill if players sue Bosch for what he says), and to put in a good word for Bosch if any law enforcement agency decides to bring charges against him.
The ESPN report also states that MLB will seek to impose 100 game suspensions against first-time PED offenders, even though the players’ collective bargaining agreement specifically allows for only 50 game suspensions for first offenses, on the theory that the first 50 games are for being caught and the second 50 games for lying to MLB about their involvement with Biogenesis during the recent investigation.
The players’ association will, of course, contest any such suspensions, of any length, through binding arbitration. Even assuming that MLB can prove to an arbitrator (baseball arbitration uses a three-person panel, but the member selected by MLB always votes for MLB and the member selected by the union always votes for the union — in other words, the professional arbitrator agreed up by both sides decides the case) that it is more likely than not that the accused players purchased PEDs from Biogenesis, I don’t think there’s any way an arbitrator will uphold more than 50 game for suspensions for those not previously punished or any further suspensions for Melky Cabrera, Bartolo Colon or Yasmani Grandal, the players who have already been hit with 50 game suspensions for testing positive to PEDs they presumably got from Biogenesis.
Longer suspensions seem too much like double jeopardy, particularly when you take into account that every player who gets suspended for testing positive has implicitly lied that he was playing the game clean until he got caught. The union will likely make the argument that some players would have been willing to tell MLB what they know about Biogenesis, but were afraid that their admissions would have resulted in additional punishment. If MLB issues 100 game suspensions for first offenses, this argument will have a lot of merit.
However, I don’t see a lot of down-side to MLB for seeking longer suspensions. 100 game suspensions make it look like MLB is doing everything it can to stamp out steroid use, and if an arbitrator fails to uphold suspensions this long, MLB can always claim the arbitrator got it wrong.
Also, arbitrators have a reputation for “splitting the baby”, i.e., giving something to both sides so that neither side fires them after the hearing. Asking for 100 game suspensions may help ensure that at least 50 game suspensions are upheld.
Finally, if MLB convinces the arbitrator that 100 game suspensions are appropriate, the players will have little recourse to the courts. Courts are extremely reluctant to overturn arbitration decisions even if the arbitrator’s reasoning is weak, because the parties have agreed to let an arbitrator decide the matter, and courts don’t want labor matters added to their already over-burdened case loads.
The ESPN article’s suggestion that MLB may be able to make 100 game suspensions stick because minor leaguer Cesar Carillo got hit with such a suspension fundamentally misunderstands the concept of precedent. As a minor leaguer, Carillo had no right or ability to challenge MLB’s decision through arbitration or otherwise. His suspension has no bearing whatsoever on whether MLB can suspend major league players for 100 games under the major league players’ collective bargaining agreement, which both provides the arbitrator with his authority to render a decision and governs the decision the arbitrator ultimately reaches.
Minor leaguers have no collective bargaining agreement — as such, they are “at-will” employees, and management can fire or suspend them for any reason or no reason, except for a reason barred by law, such as race, color, religion, sex, age or national origin. [Note that MLB passed a rule banning teams from signing women in the early 1950’s — almost certainly based on a fear that a renegade owner like Bill Veeck, who famously signed and played (one plate appearance) little person Eddie Gaedel, would sign a woman player as a stunt — such a rule could not be enforced today, provided that the female player arguably had the talent to play in the major leagues — there’s at least a chance we’ll one day see Eri Yoshida in a major league game.
Also, note that MLB discriminates against players based on age, at least in terms of how the statutes are generally applied, all the time. If a player passes age 27, and his team thinks he won’t contribute significantly in the future, they will release him. Given the specific reality of professional baseball, where players can be shown to reach peak performance as a group at age 27, it’s doubtful that any court would give serious consideration to an age discrimination lawsuit against a major league organization in terms of player personnel decisions.]
In a completely unrelated note, tonight is the 39th anniversary of the Beer Night Riot in Cleveland. Someone in Cleveland Indians’ management had the brilliant idea of a promotion to sell ten ounce beers for ten cents a pop. Fans were allowed to buy six ten-cent beers at a time (at AT&T Park in San Francisco fans are currently allowed to buy only two sixteen ounce beers at a time, each of which costs well in excess of $8 — it’s probably not much different at other major league parks today). Although attendance was more than double the Indians’ normal draw, the ultimate result was exactly what you would expect, resulting in one of only four forfeited major league games since 1954.
I was familiar with the White Sox’ famous Disco Demolition Night fiasco later in the 1970’s (another of the four forfeited games), but I hadn’t heard of the Cleveland Beer Night Riot until today. Here is Sports Illustrated’s commemorating article.Chicago White Sox, Cleveland Indians