Is Selig Preparing To Use The Nuclear Option?

Reports surfaced Tuesday on ESPN.com that Ryan Braun refused to answer questions posed by Major League Baseball’s lawyers when they interviewed him as part of the Biogenesis investigation. Alex Rodriguez is scheduled to be interviewed this Friday and, according to ESPN, also will refuse to answer MLB’s questions. Despite silence from Braun and Rodriguez, MLB apparently plans to suspend the two players — and perhaps 20 others — sometime after the All-Star break. But Braun and Rodriguez have been called out for special punishment: Not only does MLB plan to suspend the pair 50 games for possessing or using a banned substance, the league will reportedly add on another 50 games for lying about their use of banned substances.

ESPN’s report generated lots of questions and commentary. Who leaked this information to ESPN and why? Did MLB leak it to put pressure on Braun and Rodriguez to cooperate? Did Braun or the players’ union leak it to show the league’s heavy handedness? How can the league already have decided to suspend Rodriguez for 100 games before he’s even met with investigators?

But perhaps the most pressing question is: How can a player be suspended for lying when he remained silent in response to questions from MLB’s investigators? And the corollary: If the “lying” didn’t take place during the investigation, does MLB plan to rely on years-old public statements? Wouldn’t that open a huge can of worms? Craig Calcaterra, over at Hardball Talk, had some interesting things to say on these issues:

Last year Melky Cabrera famously — and quite ridiculously — attempted to pass off a phony website as an excuse for his positive PED test. It caused MLB to actually have to conduct an investigation into the phony company, purchase phony products and, at least according to some reports, travel to the Dominican Republic. This, apart from its hilarity, was blatant lying, deception and fraud. And yet, at the end of it, Melky Cabrera was given only a 50-game suspension.

If what Melky Cabrera did wasn’t worthy of double discipline, how on earth could Braun offering denials or, more likely, not saying anything, justify it?

Craig’s comments sent me scurrying back to the Collective Bargaining Agreement and the Joint Drug Policy to see if I could figure out MLB’s 100-game suspension plan. I’ve actually written on this point before, back in June, in my primer on all things Biogenesis. In that post, I pointed to two different “just cause” provisions — one in the CBA and one in the Joint Drug Policy — that MLB would likely rely on.

CBA Article 7, Section A provides:

The Parties recognize 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. Therefore, in Grievances regarding discipline, the issue to be resolved shall be whether there has been just cause for the penalty imposed.

In Section B,” just cause” is defined:

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.

. . .

And then there’s the curious “just cause” provision in the Joint Drug Policy. Section 7.G.2. gives the commissioner the authority to suspend any player for “just cause” if he violates the prohibitions in Section 2, even if that violation is not specifically set forth in Sections 7.A through 7.F. With the express language in Section 7.A. authorizing discipline if a player “uses or possesses” PEDs, the just cause “catch-all” in 7.G.2 seems unnecessary under these circumstances.

What I failed to explain in June — because I hadn’t yet figured it out myself — is that a suspension under the CBA’s just cause provision may very well be appealable only to Commissioner Selig and not to MLB’s agreed-upon neutral arbitrator. 

I’m calling this Selig’s “nuclear option.” (You can read this for an explanation of the term “nuclear option” in the political context.)

The Joint Drug Policy sets up a specific and detailed appeal process for players suspended for use or possession of a performance enhancing substance. Under Section 8, a player may appeal such a suspension to an arbitration panel composed of either a single arbitrator jointly selected by the league and the players’ association, or a three-arbitrator panel with the jointly selected arbitrator and two others — one picked by the league and one picked by the union.

In any such appeal, MLB has the burden to prove the player used or possessed the banned substance; and the player has the opportunity to challenge the league’s evidence. The arbitrator then decides if the league met its burden of proof. If so, the suspension is upheld. If not, it’s overturned. The arbitrator is not empowered to reduce the duration of the suspension; those are set forth in the Policy: 50 games for the first violation; 100 games for the second violation; and permanent suspension for a third violation. This is the appeal process Braun utilized in late 2011 after he purportedly tested positive for testosterone, a banned substance.

But the CBA has a different appeal process — called the grievance process — for players disciplined for reasons other than a violation of the Joint Drug Policy. Article XI, Section A (1)(a) describes a “grievance,” in part, as “a complaint which involves the existence or interpretation of, or compliance with, any agreement, or any provision of any agreement, between the Association and the Clubs, or any of them.” Based on that language, discipline imposed on a player for violating the “just cause” provision of the CBA would be subject to the one of the grievance procedures set forth in Article XI.

But Section A(1)(b) excludes from that definition of grievance a “complaint which involves the action taken with respect to a Player or Players by the Commissioner involving the preservation of the integrity of, or maintenance of public confidence in, the game of baseball.” When a player is suspended on this basis, his only appeal route is to the commissioner, who must promptly have a hearing with each side presenting evidence in support of its position. When the commissioner makes his decision, it is final and may not be further appealed to an arbitrator or a court. 

In other words, Bud Selig could conclude that Braun and Rodriguez — by refusing to cooperate with the Biogenesis investigation — have acted in a way that is “materially detrimental or materially prejudicial to the best interests of Baseball” — giving the commissioner “just cause” to suspend them for an additional 50 games. And because such conduct “undermined the integrity of and public confidence in baseball,” the disciplinary decision would be appealable only to the commissioner himself.

There is precedent for MLB’s commissioner to use the “best interests of baseball clause” to discipline a player for failing to answer questions or cooperate in a league investigation. In 1980, then-commissioner Bowie Kuhn suspended Ferguson Jenkins after Jenkins was arrested in Toronto on cocaine, marijuana and hashish charges, but refused to answer questions when summoned to the commissioner’s office. Kuhn suspended Jenkins without pay. Two weeks later, an arbitrator overturned the Kuhn’s decision after he concluded Jenkins couldn’t be punished for failing to help the commissioner impose a punishment on him — essentially, a private Fifth Amendment right.

But the plain language of Article XI, Section A(1)(b) says there is no appeal beyond the commissioner when he invokes the “best interests of baseball” provision. Similar language has been used in CBAs dating back to the 1970s (you can read the old CBAs at Maury Brown’s Biz of Baseball site). It’s not clear to me what the arbitrator’s authority was in Ferguson Jenkins’ case or that an arbitrator would have any authority to overrule Selig should he invoke that provision against Braun and Rodriguez.

Without any oversight by a neutral arbitrator or a court, Bud Selig is in a position to act as the investigator, adjudicator and final judge on Braun, Rodriguez and, perhaps, others.

The Biogenesis investigation is already a legal and ethical mess. MLB sued Biogenesis and Tony Bosch on weak legal grounds with the prime goal of obtaining documents the league couldn’t get any other way. Then the league cut a deal with Bosch, agreeing to cover his legal fees and indemnify him against actions by the players. The league also reportedly agreed to pay former Biogenesis employer Porter Fischer — the original whistleblower — for the boxes and boxes of documents he previously shared with the Miami New Times. 

Invoking the “bests interests of baseball” clause and precluding an appeal to an arbitrator would just add to the legal and ethical morass the commissioner has created.