Alex Rodriguez to Get Life-Time Ban?
The latest news in the Biogenesis America performance enhancing drugs (“PEDs”) saga is that MLB has informed the players’ union that it intends to suspend Alex Rodriguez and eight other players this week. Bob Nightengale of USA Today writes that Commissioner Bud Selig is prepared to impose a life-time ban on ARod unless the latter agrees to a suspension without pay for the rest of 2013 and all of the 2014 season.
Numerous theories have been posited about how MLB could make such a suspension stick, even though this will be Rodriguez’s first offense for purposes of the collectively bargained agreement to ban PED use. I’m not particularly convinced by any of these theories.
First, the collective bargaining agreement between MLB and the players’ union contains a specific provision long insisted on by MLB that allows, following a hearing heard by the Commissioner, the Commissioner to impose discipline on a player for conduct that is materially detrimental or prejudicial to “the best interests of baseball.” Such discipline cannot be reviewed by an arbitrator or the courts.
A couple of weeks ago, attorney Wendy Thurm wrote a piece for fangraphs about this provision, which she called Commissioner Selig’s “nuclear option.” What Thurm does not mention, however, is that the very next provision of the collective bargaining agreement (“CBA”) allows the players’ union to re-open the CBA on this issue upon ten days’ written notice if the Commissioner tries to use this provision and players’ union doesn’t agree with it.
The only time this has really come up is back in 1980 when Canadian authorities accused Fergie Jenkins of having drugs (marijuana, cocaine and hashish) in his suitcase when he entered the country to play a series against the Toronto Blue Jays. Before the charges were resolved, then Commissioner Bowie Kuhn called Jenkins into this office and questioned him about the charges. On the advice of his attorney who was present at the Kuhn meeting, Jenkins refused to answer questions about a pending criminal matter.
Bowie Kuhn then tried to suspend Jenkins for conduct detrimental to the best interests of baseball. However, Kuhn almost immediately folded when the players’ union threatened to re-open the contract if Kuhn would not let the suspension be arbitrated. The suspension went before an impartial arbitrator on short notice and the arbitrator ultimately overturned the suspension in its entirety.
Would the players’ union seek to re-open the CBA and back up their negotiating position with the threat of a strike if Bud Selig attempted to impose a life-time ban on Alex Rodriguez without the possibility of impartial review by an arbitrator or a court? If they were any kind of union, not to mention one as strong and powerful as the MLBPA, they sure as shootin’ would.
No union worth its salt is going to allow an employer to impose a career-long ban and invalidate $100 million-plus in future contractual obligations without impartial review without an enormous fight, even if the member being defended is as unsavory as Alex Rodriguez (or, perhaps, particularly if the union member is unsavory because of the negative precedent it could set). If Selig is allowed to do it to ARod, what player would be safe from this provision of the CBA and the ultimate penalty any time he crossed his team or MLB? You have to remember that the Commissioner is nothing more or less than a paid representative of the owners — the players have no role either in the Commissioner’s selection or the payment of his salary.
Some people have cited the life-time ban on Pete Rose as support for the argument that Bud Selig could impose a life-time ban on Alex Rodriguez. Those people don’t understand the most basic tenets of labor law. Pete Rose was banned for conduct while he was manager of the Cincinnati Reds, a management position.
Rose was not a member of the union or protected by it or the CBA. As such, he had no recourse when Commissioner A. Bartlett Giamatti banished him. If Rose had been in his later playing days when he got caught betting on his team to win, things would have been very different.
In trying to get a ban longer than 50 games, MLB will apparently argue that everything over 50 games is attributable to Alex Rodriguez lying to MLB when questioned about Biogenesis America and otherwise trying to “impede” MLB’s investigation. The problems with MLB’s likely argument are two-fold.
First, the Fergie Jenkins case supports the proposition that baseball players don’t have to tattle on themselves to the Commissioner. Second, when Melky Cabrera tested positive to PEDs last year, he clearly tried to “impede” the investigation, but he received only a 50 game suspension.
For those of you who don’t remember, Melky or his representatives (his “agents” in a legal sense) tried to set up a fake website to make it look like Melky took a supplement he couldn’t have known contained banned PEDs. This fraud was quickly discovered, but Melky still received only a 50 game suspension.
Even if Rodriguez did, as some rumors suggest, try to buy up Biogenesis America documents to hide his involvement with the anti-aging clinic, I don’t see how this conduct would be substantially different from Melky Cabrera’s fake website a year ago. If MLB has evidence that Rodriguez did, in fact, buy and hide or destroy documents, and these documents contained information that might have prevented MLB from discovering other players who used banned PEDs, MLB might have an argument that Rodriguez should receive additional punishment for “impeding” MLB’s investigation. If the documents contained information only about Rodriguez, I don’t see how his actions would be significantly different from Cabrera’s.
As I’ve said before, MLB has little to lose by over-sentencing ARod. If an arbitrator overturns the punishment, MLB can do the same thing it did after arbitrator Shyam Das overturned Ryan Braun‘s 2011 PED suspension: fire the arbitrator and claim through the media that the arbitrator’s decision was wrong in all respects.
In any event, MLB will have gone on record trying to impose the biggest possible punishment for a steroids-cheat, which makes it look like MLB is doing something to clean up the game. MLB will likely also have leverage in future collective bargaining for steeper PED punishments. MLB’s past history of firing arbitrators may also give an arbitrator a stronger desire to “split the baby” and confirm a penalty somewhere between a life-time ban and a 50 games suspension.
Obviously, we’ll just have to wait and see how it all plays out.