MLBPA Chief Michael Weiner With Potential Game Changer On Biogenesis

Major League Baseball Players’ Association chief Michael Weiner held his annual All-Star Game press conference this morning. That is news in and of itself, in light of Weiner’s battle with brain cancer that has now sidelined him to a wheelchair. But even in his weakening condition, Weiner made news on the Biogenesis front.

Weiner: Biogenesis penalties aren’t mandated by MLB drug policy, the 50-100-life scale in agreement.

— Bill Shaikin (@BillShaikin) July 16, 2013

I followed up and Bill Shakin replied.

@hangingsliders Commissioner’s “just cause” discretion. — Bill Shaikin (@BillShaikin) July 16, 2013

Why is this big news? Because the plain language of the Joint Drug Policy says that a player who violates the policy by use or possession of a performance enhancing substance is subject to the same discipline as a player who tests positive. As I explained in the post MLB and Biogenesis: A Primer, Section 7.A of the Joint Drug Policy states:

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. (emphasis mine) 1. First violation: 50-game suspension; 2. Second violation: 100-game suspension; 3. Third violation: Permanent suspension from Major League and Minor League Baseball.

Weiner, with Bill Shakin’s clarification, appeared to say that if the Biogenesis investigation turns up evidence of a player’s use or possession, the league would proceed under the “just cause” provisions of the Joint Drug Policy and the Collective Bargaining Agreement. I explained those provisions, as well, in the Primer post and further in last week’s post entitled “Is Selig Preparing To Use The Nuclear Option?” Essentially, the just cause provisions give the commissioner the power to discipline a player if he acts against the best interests of baseball.

But that sort of provision wouldn’t typically come into play when there is a more specific discipline scheme that already covers a particular kind of conduct. One possibility is that Weiner and the union believes that Section 7.A. does’t apply when a violation can be proved only by circumstantial evidence. That is, if the league develops evidence of a player’s use of PES only through Biogenesis notes and the testimony of Tony Bosch, then that isn’t sufficient to trigger the 50-100-lifetime penalties. The Joint Drug Policy doesn’t even hint at that, but it could be an understanding between the union and the league that arose during negotiations of the agreements.

If Biogenesis-related suspensions for use or possession of a PES don’t start at 50 games, where do they start?

Mike Weiner says the Players involved in Biogenesis not bound by drug agreement and could get 5 game suspensions or even 500 games

— Bob Nightengale (@BNightengale) July 16, 2013

Further tweets from the national baseball writers reported Weiner to say that the suspension lengths were negotiable.

That’s good news for a player who’s never tested positive for PES but whose name shows up on some Biogenesis documents. Maybe he only gets a five or ten game suspension because there’s only circumstantial evidence. But it could be bad news for others, like Alex Rodriguez, who are reported to have had a long-standing relationship with Tony Bosch and Biogenesis. If the league develops evidence of pervasive use or possession by A-Rod, it could seek much harsher penalties, even if they fall short of a lifetime ban.

In any appeal from a suspension, MLB will have the burden to prove by a preponderance of the evidence that the player violated the Joint Drug Policy and that the punishment is just and reasonable.