MLB and BioGenesis: A Primer by Wendy Thurm June 11, 2013 Major League Baseball has stepped up its investigation of Biogenesis, the now-defunct anti-aging clinic that reportedly provided performing enhancing drugs to many MLB players. According to an ESPN news report last week, MLB has secured the cooperation of former Biogenesis director Anthony Bosch and plans to rely on Bosch’s testimony and documents as a basis for suspending more than a dozen players for violations of the league’s Joint Drug Policy. There’s been a great deal of hue and cry over MLB’s deal with Bosch and with good reason. Our colleague Jonah Keri, writing at Grantland the day after ESPN’s report, raised important questions about Bosch’s credibility and the scope of MLB’s proposed action. [Disclosure: I was on vacation last week, but assisted Jonah on his post, as he noted.] Others have defended MLB’s plan to rid the sport of PEDs “once and for all.” As with most discussions about PEDs and baseball, there’s a lot of disagreement, accented by rage (faux or not) and hyperbole. If you’re familiar with my writing, you know I’m not one to shy away from a healthy argument. But arguments are strongest when backed by verifiable facts. Such was the lesson of my legal training and experience. So before we get too far down the road in deriding or defending MLB’s conduct, let’s take some time to parse through the facts. What is Biogenesis and who is Anthony Bosch? Biogenesis was an anti-aging clinic in Miami, Florida. The clinic closed earlier this year after reports surfaced in the Miami New Times that Anthony Bosch, the clinic’s director, had supplied PEDs to several MLB players including Alex Rodriguez, Ryan Braun, and Nelson Cruz. Bosch is not a doctor and has no formal medical training. His father, Pedro, is a doctor with a family practice in south Florida. The Miami New Times reports were based on documents obtained by the newspaper from a former Biogenesis employee. Most of the documents contained only handwritten notes with names of MLB players, dollar amounts, and specific performance-enhancing substances. In January, when the Miami New Times story first broke, Anthony Bosch denied that he provided PEDs to any MLB players. He maintained that denial at least through April, as noted in this video report by ESPN’s Outside The Lines. Why does MLB need Bosch’s cooperation? Biogenesis has been on MLB’s radar for several years. Bosch and his colleagues allegedly provided Human Clorionic Gonadotropin to Manny Ramirez, thereby causing Ramirez to fail a drug test. In 2009, Ramirez was suspended for 50 games. MLB turned up the heat on Biogenesis late last summer after Melky Cabrera, Bartolo Colon, and Yasmani Grandal tested positive for PEDs. Each was suspended for 50 games. MLB developed information suggesting a link among those players — and others — with Biogenesis. But MLB’s investigation was stymied when Biogenesis closed up shop, and its former employees scattered throughout south Florida. MLB tried without success to obtain the documents in the possession of the Miami New Times, but the newspaper refused to turn them over (properly in my view), to protect its anonymous sources. Yahoo! and ESPN reported on other Biogenesis documents; there’s no evidence that either of those news outlets shared their documents with MLB. To continue with its investigation — and to develop reliable evidence that players used or possessed PEDs — MLB needs documents linking Biogenesis to specific players and specific performance-enhancing substances. But MLB needs more than documents; it needs a witness who can explain the creation and meaning of the documents: who prepared the documents, for what purpose, and when? How were the documents used at Biogenesis? How were they maintained? Who had access to the documents? Do copies of the documents exist? Where? Were documents destroyed? By whom, when and for what purpose? As the former director of the clinic, MLB is betting that Anthony Bosch can truthfully answer these questions. Indeed, MLB was so eager to get Bosch’s sworn testimony and his documents that it sued Bosch and others connected to Biogenesis in Florida state court. As I explained in this April post, MLB’s lawsuit had a tenuous legal basis, but was likely sufficient to force Bosch and the other former Biogenesis employees to turn over documents and provide sworn testimony. According to the New York Daily News, MLB’s investigation and lawsuit were putting such a drain on Anthony Bosch, that he asked Alex Rodriguez for financial help. When Rodriguez refused to help, Bosch turned to the only other party that could provide relief: Major League Baseball. To gain Bosch’s cooperation, MLB agreed to drop its lawsuit against him, indemnify him should any players sue Bosch as a result of his cooperation, provide security for Bosch, and to assist Bosch in avoiding criminal charges. How can MLB suspend players without a positive drug test? MLB’s Joint Drug Prevention and Treatment Program — which is incorporated in the collective bargaining agreement between the league and the players’ association — prohibits all players from “using, possessing, selling, facilitating the sale of, distributing, and facilitating the distribution of any” PEDs. See Section 2. Players who violate the prohibitions in Section 2 are subject to discipline. As described in Section 7.A., “A player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the possession or use of a Performance Enhancing Substance, will be subject to the discipline set forth below.” When MLB develops evidence that a player used or had possession of a PED — but did not fail a drug test — it refers to the result as a “non-analytic positive.” The league suspended Jordan Schafer for a “non-analytic positive” in 2008 after developing “anecdotal information” that he had used human-growth hormone. Can a player be suspended for a “non-analytic positive” if he was already suspended based on a positive drug test? Several players under scrutiny in the investigation already served 50-game suspensions when they tested positive for PEDs last season. Indeed, as I mentioned, the positive tests and subsequently suspensions for Melky Cabrera, Yasmani Grandal, and Bartolo Colon kicked MLB’s Biogenesis investigation into high gear. The Joint Drug Policy specifies in Section 3.H. that a player “shall not be subjected to multiple disciplines as a result of the same use of a Prohibited Substance.” In order to suspend Cabrera, Grandal or Colon based on Biogenesis documents or Bosch’s testimony, MLB would have to develop evidence that those players used or possessed a PED separate and apart from the one that triggered the positive test last year. Does MLB need “just cause” to suspend a player based on a “non-analytic positive”? There’s been quite a bit of confusion on this point in other reports on MLB’s Biogenesis investigation, so let’s get this straight. The answer is no. Section 7.A. of the Drug Program gives MLB the authority to discipline a player if it develops evidence that the player used or possessed a PED, even in the absence of a positive drug test. There is no “just cause” standard applied. There are, however, two “just cause” provisions in the key agreements: one in the CBA and one in the Joint Drug Policy. The CBA provision may come into play if MLB seeks to suspend players not just for possession or use of a PED, but for lying to the league about it in the course of the investigation. ESPN reported that the league is considering this approach, particularly with respect Ryan Braun and Alex Rodriguez. 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. MLB may very well intend to rely on this provision to discipline a player for lying to league investigators about his use or possession of PEDs, in addition to any discipline meted out for “use or possession” of a PED. 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. Will players have the opportunity to challenge Bosch’s documents and testimony? At some point, yes, but not until MLB makes a decision on which players, if any, should be suspended. As noted, the CBA and the Joint Drug Policy empower the league to act as an investigator in gathering evidence, and as a judge in determining whether there is sufficient evidence for a suspension. If the league suspends a player for violation of the Joint Drug Policy — or based on the “just cause” provision of the collective bargaining agreement — the player can challenge the suspension by appealing to an arbitration panel. In the arbitration proceeding, MLB has the burden of proving that the Joint Drug Policy was violated. If MLB relies on Bosch and his documents to suspend a player or players, the league will have to present Bosch’s testimony to the arbitration panel. The players will then have the opportunity to challenge the authenticity, reliability and credibility of Bosch and his documents. This is done through cross-examination of Bosch and through other witnesses who may contradict Bosch and reveal his penchant (or lack thereof) for truthfulness. Keep in mind that MLB is likely to have many more witnesses than just Anthony Bosch. Newsday reported last week that the league has developed “tons” of witnesses during the course of its investigation. What happens after the arbitration panel issues its decision? A decision by the arbitration panel either affirming or overturning a suspension is final and binding on MLB and the player. Collective bargaining agreements are governed by the federal law known as the Labor Management Relations Act. Under that statute, judicial review of an arbitrator’s decision under a collective bargaining agreement is very limited. Courts are not authorized to review an arbitrator’s decision on the merits, even if one of the parties argues that the arbitrator made factual errors or misinterpreted the CBA. A court may intervene only when the arbitrator strays so far from his authority that he “dispenses his own brand of justice,” as the Supreme Court wrote in a recent opinion. Remember that MLB threatened to seek judicial review of the arbitrator’s decision in early 2012 to throw out Ryan Braun’s positive drug test. MLB would have faced this very, very tough standard had it gone that. The same will be true of any party — MLB or a player — that’s unhappy with the outcome of the arbitrator’s decision in the Biogenesis investigation. * * * * * * * * * * * This is what we know now. Information about Bosch, and other Biogenesis witnesses and documents, will change in the coming weeks. But the legal documents will not change. The current CBA and Joint Drug Policy have been agreed to and will govern until the end of the 2016 season. These documents provide the framework for how to think about MLB’s investigation and the steps it takes to discipline players involved with Biogenesis.