Rodriguez Arbitration Decision A Clean Sweep For MLB

Alex Rodriguez sued Major League Baseball and the Major League Baseball Players Association on Monday as part of an effort to overturn his suspension. That suspension became effective on Saturday when arbitrator Frederic Horowitz issued a decision on Rodriguez’s appeal and reduced the slugger’s penalty from 211 games to the entirety of the 2014 season — 162 regular season games and any postseason games the Yankees might play.

Click here to read Rodriguez’s complaint and arbitrator’s 33-page written decision, which is attached as Exhibit A to the complaint.

The allegations in Rodriguez’s complaint echo the ones he’s made throughout the Biogenesis investigation: that MLB engaged in egregious conduct in an effort to prove that Rodriguez used PEDs; that MLB breached the confidentiality provisions of the collective bargaining agreement and joint drug agreement on numerous occasions, by selectively leaking damaging information; and that MLB unfairly targeted him for harsher punishment. For the first time, Rodriguez also alleged that the Players Association acted contrary to his interests during the investigation and appeal proceeding and that, together with the way the arbitrator handled the appeal, deprived him of due process.

Interestingly, Rodriguez did not ask the court for either a temporary restraining order or preliminary injunction to keep the suspension from going into effect. His attorneys had stated publicly over the weekend that they planned to ask for such relief from the court. Without such a request, his lawsuit will slowly wind its way through the courts before it reaches what is likely to be an unsuccessful conclusion. As I’ve explained before, and as discussed here, federal courts are loathe to interfere with decisions that result from a collectively-bargained arbitration proceedings.

As a result, the arbitrator’s decision likely means that Rodriguez will sit out the 2014 season. It also means that the decision will set a precedent for how the CBA and JDA are interpreted and applied. Given the breadth of the arbitrator’s decision, that’s a troubling prospect for the Players Association and the players it represents.

For months, we’ve been speculating about the legal basis for Rodriguez’s 211-game suspension in light of the 50-100-lifetime punishment scheme in the JDA. Before Bud Selig handed down the suspension on August 5, there were rumors that he was considering banning Rodriguez for life under the “best interests” clause of the CBA. In several posts, I parsed the language of the CBA and the JDA in an effort to devine the Commissioner’s thinking. Those posts can be found here, here, and here. I returned to the issues again on Saturday, after news spread that the arbitrator had reduced the suspension from 211 games to 162 plus the postseason in 2014.

As a reminder, Section 7.A of the JDA 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.

Michael Weiner, who was at the time the MLBPA executive director (and has since passed away), suggested last July that suspensions for “non-analytical positives” —i.e., suspensions based on evidence other than a positive drug test — were not limited to the 50-100-lifetime regime.

Section 7.G.2 of the JDA, entitled “Other Violations,” states in subsection (2):

A Player may be subject to disciplinary action for just cause by the Commissioner for any Player violation of Section 2 above not referenced in Section 7.A. through Section 7.F. above.

Section 2 is the provision that outlines all of the Prohibited Substances (Drugs of Abuse, Performance Enhancing Substances, and Stimulants) and details what players are permitted to do and not do with these substances. The first sentence of Section 2 reads:

All Players shall be prohibited from using, possessing, selling, facilitating the sale of, distributing and/or facilitating the distribution of any Drug of Abuse, Performance Enhancing Substance and/or Stimulant (collectively referred to as “Prohibited Substances).

Now we know that Selig suspended Rodriguez under Section 7.G.2 of the JDA, and thus sidestepped the 50-100-lifetime regime. The arbitrator’s decision included a copy of Selig’s letter to Rodriguez. An excerpt:

The key phrase in Selig’s letter is his charge that Rodriguez engaged in “intentional, continuous, and prolonged use and possession of multiple forms of Performance Enhancing Substances, including but not limited to Testosterone, Human Growth Hormone, and IGF-1” during the 2010, 2011 and 2012 seasons. In other words, this was much more than single positive test, according to Selig, and therefore outside Section 7.A.

Selig also invoked the CBA’s “best interests” clause:

But Selig wasn’t done:

In other words, it appears that the Players Association backed off Michael Weiner’s statements in July that the 50-100-lifetime regime in Section 7.A didn’t apply. On that score, Selig threatened that application of Section 7.A. would result in a lifetime ban, as there was ample evidence that Rodriguez had used PEDs at least three times.

Following the two-week hearing, the arbitrator found that MLB had proved by clear and convincing evidence that Rodriguez had intentionally and purposefully used at least three different PEDs over the course of three seasons. He credited the testimony of Tony Bosch which was, according to the arbitrator, corroborated by documents maintained by Bosch and text messages between Bosch and Rodriguez. He recognized that Bosch had initially denied any involvement with PEDs and that his change in testimony came after MLB agreed to pay his legal fees and provide security, but found those factors didn’t under cut Bosch’s testimony under oath.

The arbitrator also rejected claims by Rodriguez that his 11 negative drug tests countered against Bosch’s testimony. Rodriguez argued that if he had taken the PEDs in the quantity and frequency testified to by Bosch, he would have tested positive for PEDs at least once. Not so, said the arbitrator. “As advanced as MLB’s program has become, no drug testing program will catch every player,” he wrote. There’s no shortage of irony that MLB’s case against Rodriguez was strengthened by the holes in its own testing program.

Beyond the PEDs, the arbitrator found that Rodriguez did impede MLB’s investigation by inducing Bosch to lie about his involvement with Rodriguez and PEDs, and by attempting to obtain a false affidavit from Bosch. MLB’s claims that Rodriguez purchased Biogenesis documents in order to destroy them were brushed aside by the arbitrator because “while troubling, they would not affect the ultimate determination regarding the appropriate penalty in this matter.”  It’s an interesting view, to be sure. From where I sit, buying stolen documents and destroying them shows a much more egregious effort to impede an investigation than asking others to deny the allegations.

Overall, MLB prevailed on nearly every factual issue before the arbitrator. Even so, the question remained: on this evidence, what was the appropriate penalty under the CBA and JDA. And here’s where things get dicey.

From the arbitrator’s decision:

Wait a second. The Players Association argued that the maximum penalty was 50 games as a first violation, but that Section 7.G.2 provided the “governing framework”? And that Section 7.A. — which does contain the 50-100-lifetime penalty scheme — doesn’t apply when there has been “continuous use or possession of multiple substances”? Frankly, that doesn’t make a lot of sense, and it makes me wonder if the Players Association didn’t clearly articulate its view of the governing agreements or the arbitrator misconstrued the union’s position.

Moreover, the arbitrator’s interpretation of Section 7.A. omits a key portion of the language. He points to the first part of the section that talks about a player “who tests positive for a Performance Enhancing Substance” (his emphasis) and concludes that the section couldn’t apply to a situation involving evidence of multiples uses of a PED. But he completely ignores the second part of the section: a player who otherwise violates the Program through the possession or use of a Performance Enhancing Substance will be subject to the 50-100-lifetime regime (my emphasis). What does that language mean if it doesn’t apply to players found to have used or possessed PEDs absent a positive drug test?

We then get the arbitrator’s pivotal holding:

Even though Section 7.A. doesn’t apply, it provides guidance to how Section 7.G.2 should be interpreted. And in previous decisions, baseball’s arbitrators have held that “separate uses are subject to separate discipline,” so even if Section 7.A. did control, it would require separate discipline for Rodriguez’s distinct uses of three different banned substances. That’s pretty close — if not exactly — what Selig threatened to Rodriguez back in August: if you persist that Section 7.A. applies, you are subject to a lifetime ban for three separate uses of three separate PEDs.

The arbitrator doesn’t reach that issue but, instead, holds that even if the progressive nature of 50-100-lifetime scheme doesn’t apply to justify a lifetime ban, there is ample support for finding three violations each subject to the 50-game penalty, and that equals 150 games, before you even get to the obstruction charge. In other words, 50-game suspensions can be stacked one on top of the other when MLB has evidence that a player used one or more PEDs on multiple occasions.

Think about that. When a player tests positive for a PED, and it’s the first violation, he is suspended for 50 games. But how many players use a PED only one time and that just happens to be when he is tested? Isn’t is more likely that a player who tests positive for PEDs had used on multiple occasions over an extended period of time?

And yet the arbitrator’s decision grants MLB broad powers to discipline players much more harshly when the league’s own testing program fails and the league develops independent evidence of use.

Whatever you think of Alex Rodriguez, Tony Bosch, and the entire Biogenesis mess, it’s hard to accept such an absurd legal result.