Wendy Thurm BioGenesis Chat – 8/5/13

Comment From DRW
Wendy — do we have information on how MLB will calculate the “50 games” for players who are in the minor leagues, where the seasons end in early September?

Wendy Thurm: Welcome all. Thanks for the questions. I’ll do my best to get you answers.

Wendy Thurm: MLB stated in its press release that all suspensions will begin immediately, even for minor league players, other than for Jordan Norberto, who is not currently signed with a team. Minor leaguers will serve suspensions via minor league games. If there aren’t enough minor league games this year to get to 50, the suspensions will roll over to 2014.

Comment From Guest
Is the moral of Biogenesis that the league is wasting a large amount of time and money testing 1000’s of players for PED’s numerous times every year?

Wendy Thurm: It can be frustrating to see this kind of situation years after the players and the league agreed to a rigorous testing program. A few things to remember. First, players aren’t tested every day. Second, the biochemistry of PEDs is often a step or two ahead of the testing. That doesn’t make the testing meaningless. It just means that some PED isn’t captured but current tests. Expect the testing regime and the punishments to be strengthened.

Comment From Kris
Could/should/will the MLB ban the Levinson’s/ACES from representing MLB players?

Wendy Thurm: This is an interesting question, and one that hasn’t been discussed. I would expect MLB to look into ACES more closely.

Wendy Thurm: Correction on the question about minor league players. Those players currently on a team’s 40-man roster — Valdespin and Montero — will serve suspensions immediately. Those NOT on 40-man rosters will have their suspensions roll over into 2014.

Comment From Jo
Hypothetical, but if A-Rod is suspended for 211 games, which is the rest of this season through the end of the 2014 regular season, then he could technically join the Yankees at the tail end of the 2014 season, right? This would be because the Yankees make the 2013 playoffs and those 10-ish games are included in his 211 game suspension.

Wendy Thurm: No. The suspension is for the rest of 2013, all of the 2013 postseason (if the Yankees play, and all of 2014. The suspension will be stayed pending the appeal. The arbitrator will ultimately decide how long A-Rod serves, when that starts and ends.

Comment From BucN
How big of a gift basket are the Yankees sending Selig right now? I feel like this is basically a get out of jail free card for them and nothing else.

Wendy Thurm: There’s been quite a bit of commentary on this point — that the Yankees were quite interested in seeing Rodriguez suspended. A-Rod suggested it himself this weekend, with his “pink elephant” comments. The Yankees issued a statement today denying any involvement in MLB’s decision making on the suspension. We may hear more about this during the arbitration.

Comment From Rob
Is it shocking at all to you that mlb players, who make millions, rely on such incompetent businessmen to get their product? I would think they would spend a lot more coin to find the best drug suppliers and insulate themselves better.

Wendy Thurm: Your question assumes there are more legitimate guys out there who will prescribe and sell substances banned for use in MLB. There may be, or not. I don’t know the answer.

Comment From Jonathan
why was it so important to MLB to have players not appeal suspension?

Wendy Thurm: Good question. MLB wanted as many players as possible to agree to the suspension, b/c the league believes that all the agreed-to suspensions will show how credible Tony Bosch and Porter Fischer are. Also, if several players appealed, MLB would be fighting battles on several fronts simultaneously.

Comment From Seth B.
Where’s the union on this, for a-rod especially? Should team and league really be able to work together to get a player banned?

Wendy Thurm: MLBPA Exec Director Michael Weiner issued a statement a few minutes ago blasting the suspension as not justified under the JDA and CBA and supporting A-Rod’s appeal.

Comment From Kris
Is it called the “joint drug program” so the MLB can suspend all players who violate the drug rules, even if they aren’t in the Majors?

Wendy Thurm: It’s called the Joint Drug Program to show the agreement among players, owners and the league.

Comment From Izzy
Doesn’t the fact that teams need not pay suspended players’ contracts create an incentive for those teams to get their players suspended?

Wendy Thurm:

Only if the players are underperforming their contracts. In fact, the question you raise goes the heart of why so many think it’s a bad idea to give teams the right to void a contract entirely if a player violates the JDA. THAT would give teams incentive to undermine a player who signed a big contract and is not performing in the back end of the deal.

Comment From Jimmy
How many games could we realistically estimate A-Rod will play this season? Are we looking at a long appeals process?

Wendy Thurm:

A-Rod is the only player appealing, which clears the decks for a relatively quick resolution. The agreements contemplate a process lasting 2-3 weeks. There was a hint this afternoon that MLB would ask the arbitrator — Frederic Horowitz — to expedite the process. 

Comment From Razor
Wendy though it’s extremely unlikely, would it be possible for the suspended players to play for an independent league team this summer, or (in A-Rod’s case) winter ball in the carribean?

Wendy Thurm: Good question. I need to check on this, but I believe certain leagues — like the NPB in Japan — respect suspensions by MLB and will not employ players currently suspended. I’m not sure about the Caribbean leagues.

Comment From Shark Mapiro
Do you think that MLB firing the arbitrator right after Braun won his appeal will have any effect on the decision made by the arbitrator in the A-Rod case?

Wendy Thurm:

Frederic Horowitz has an excellent reputation in the arbitration world. Well respected on all sides. I believe he’ll do what he thinks is called for by the agreements and the evidence presented. There is always the risk that the union or the league will fire the arbitrator after any decision comes down.

Comment From jess
what and whom does this mean for alex rodriguez’s hall of fame chances?

Wendy Thurm: I’m not a HOF expert, but I’d say his chances are zero.

Comment From Matt (Steinway)
Wendy, first off I want to thank you for being the reasoned and knowledgable voice on this whole thing. The entire PED debate is fraught with high emotion combined with hearsay and speculation, and it is great to have a trustworthy expert who can present the actual facts of the case. Now my question: It seems that a majority of the players implicated in the Biogenesis case were clients of the same agency- ACES. Do you think MLB will go after the agency? Is there any provision entailing how this would proceed?

Wendy Thurm: Thanks Matt. Appreciate the comments. I noted above that I do think MLB will investigate ACES. Agents do need to be certified by MLB to represent major league players. That may be at risk. I will certainly be following that story as it develops.

Comment From Jonathan
ISn’t there something wrong with MLB trying to negioate a suspension with player by threatening more games if the player doesn’t agree to drop appeal

Wendy Thurm: There was quite a bit of Twitter debate on this very issue last week. From my perspective, if there is evidence that a player used or possessed a PED for the first time, the only punishment is a 50-game suspension. I do not think it’s appropriate for MLB to threaten a longer suspension under the “best interests of baseball” provision if a player exercises his right to appeal.

Comment From Guest
What happens to the players salary? Does it just not get paid as Buck Showalter griped about?

Wendy Thurm: The Yankees do not need to pay A-Rod will he is suspended. Further, the amount of his salary covered by the suspension is deducted from the Yankees’ total payroll for purposes of calculating the luxury tax. So yes, there is a financial benefit to the Yankees.

Comment From Izzy
Is there any way that MLB will be able to defend a 211 game ban? Seems rather random. Is the most likely scenario that it will be reduced to 50 or 100 games?

Wendy Thurm: I discussed this at length in my post, which is up on the FG front page right now. The suspension total does appear to be arbitrary once you get beyond the numbers outlined in the JDA. Based on MLB’s statement, I’m guessing that the decision was 150 games under the JDA — 50 for the first violation, 100 for the second violation — based on evidence that A-Rod repeatedly used PEDs over the last 3 years. Then you add on 61 games for the obstruction.

Comment From Cory
What would happen if the Yankees had refused to roster or play A-Rod?

Wendy Thurm: What would have happend if they refused to roster him today? Not clear. There’s been quite a bit of back and forth between A-Rod and the Yankees on whether he was ready to play or still injured enough to justify keeping him on the DL. At this point, the Yankees have to pay him until the appeal is resolved. Why not play him?

Comment From JK
If A-Rod wins his appeal, how will that affect the suspensions of any of the other players? Do you think any of the others would then try to appeal?

Wendy Thurm: There will be no effect. The other players agreed serve their suspensions and forgo appeals. That will not be undone by anything that happens in A-Rod’s appeal.

Comment From Hank G.
What do you think will be ARod’s goal before the arbitrator? No suspension, 50 games as an official first-time offender, or something else?

Wendy Thurm:

I’d need to know more about the evidence MLB gathered. Reports say the evidence is “overwhelming” but I don’t know what that means? Overwhelming on one use? Repeated uses? On obstructing the investigation? I suspect A-Rod’s lawyers will try to chip away at the evidence to get the suspension as low as possible.

Comment From Guest
What’s PA’s position on the duration of the Arod ban? Is this bad precedent? Or are they not concerned because this is such an exceptional circumstance?

Wendy Thurm: As I noted above, MLBPA has stated that the suspension is not warranted under the agreements and that it supports the appeal.

Comment From Nathan
Wendy: Are there separate appeals/arbitration processes for the parts of Rodriguez’ suspension under the Basic Agreement and the PED section of the CBA?

Wendy Thurm: No, it will be one proceeding before Frederic Horowitz.

Comment From Rags
The original leak said 20+ players, right? 13 + Braun + the double jeopardy trio only makes 17. Could there still be players appealing who we haven’t heard about yet?

Wendy Thurm: Possible, but unlikely. Remember, don’t believe everything you read in a report citing “unnamed sources.”

Comment From Bubba
Do we have an idea of who is appealing the suspension and who is not?

Wendy Thurm:

13 players were suspended today. Only A-Rod is appealing. I explained that in my post, now on the FG front page.

Comment From Rags
What happens to suspended players’ salaries? Are teams off the hook?

Wendy Thurm: Yes.

Comment From Alex Rodriguez
if you had to assign likelihoods to the four most likely outcomes of A-Rod’s appeal (~50 game suspension, ~100 game suspension, ~150 game suspension, 211 game suspension), what would they be? 20%/45%/30%/5%?

Wendy Thurm:

Without having access to the evidence, I’m not in a position to assess the likelihood of outcomes. I do think the 211 game ban will not be upheld. Something closer to 100-150 games seems more likely.

Comment From Bill
What is the justification of suspending ARod for an arbitrary 211 games. I understand an odd number for Braun, as it was a plea deal, but shouldn’t ARod be suspended for 50, 100, or life?

Wendy Thurm: Bill, please read my post on the front page of FG. I examined all of the relevant provisions in the JDA and the CBA in detail. I do think 211 is arbitrary and will be reduced by the arbitrator.

Comment From Guest
Hi Wendy, i thought the Colon/Melky suspensions last season were for test-based violoations, and that the Biogenesis suspensions now are for being linked, or listed one the company’s client “list” and not for testing positive. Shouldn’t they be separate violoations?

Wendy Thurm: MLB determined that Cabrera, Colon and Grandal “used or possessed” PEDs from Biogenesis only one time — and that was the time they tested positive. So  no double punishment.

Comment From Andrew
So if the Yankees make the 2013 playoffs, those missed postseason games would not get counted towards A-Rod’s 211 game suspension, is that correct?

Wendy Thurm: The suspension is for the remainder of 2013, the 2013 postseason, and all of 2014. If the Yankees make the postseason, the suspension duration would be longer than 211 games. In the end, this issue gets resolved by the arbitrator.

Comment From Fish
If one of these minor leaguers is already on a 40-man, could the team “put them” on the big league roster when they expand so get rid of the 50 faster?

Wendy Thurm: Minor leaguers on the 40-man will start their suspensions immediately. It’s the players not on the 40-man who have to wait.

Comment From guest
why/will/should/could the fans still accept arod?

Wendy Thurm: That’s a decision each fans has to make him or herself.

Comment From Bryan
Why does MLB have the right to investigate it employee’s medical records? I can’t imagine how this scenario would be possible in a corporate setting.

Wendy Thurm: Players agreed to permit MLB investigations as part of the JDA and CBA. One thing players and the union are very upset about are the leaks. The whole process is supposed to be confidential. Union wants stronger confidentiality protections.

Comment From Fish
How is it that Braun isn’t legally allowed to comment but Cruz has already provided an excuse for his usage?

Wendy Thurm: I don’t know that Braun is legally prohibited from commenting. He did issue a statement as part of the agreed upon suspension. Cruz issued a short pre-arranged statement.

Comment From Jimmy
effective Thursday the 8th. So today, tues, and weds he’s not technically suspended or under appeals?

Comment From A-Roid
There was something I read about the major leaguers being able to do some minor league stint or some kind of simulation a couple days prior to end of suspension, is this true at all?

Wendy Thurm: Correct.

Wendy Thurm: Yes, I don’t recall the details exactly, but the agreements permit a player to begin a “rehab” assignment and other baseball work a few days before the suspension expires.

Comment From Stacie
Could the Yankees face any ramifications for not playing Rodriguez during the appeals process?

Wendy Thurm:

The JDA and CBA are clear that a team may punish a player separately, and in addition to, any league punishment. So yes, there would be ramifications if the Yankees took separate action.

There has been a dispute about whether A-Rod is able to play, given his injuries. I think that gets resolved with his start in Chicago tonight. 

Comment From Andrew
So, to take a step back, this suspension is for A-Rod’s continued use of PEDs after his Texas days, correct?

Wendy Thurm: That is what MLB has stated.

Comment From John
Isn’t there a huge PR problem for the union if the vocally step up and support a steroid user?

Wendy Thurm: I don’t think so. The union represents all players and must defend the agreed-upon process. If they believe that MLB went beyond what’s justified by the agreements, then the union can, and should in my view, step in.

Comment From Guest
Rangers fan here. Are you familiar with the whole story surrounding A-Rod’s contract deferment from his trade to NY? If so, how is he standing to still get money from the Rangers, even in suspension?

Wendy Thurm: Good question. I don’t know the answer now but I will investigate.

Comment From Ron
How much of the timing of this announcement is to limit appeals? It seems that the possibility of the suspensions moved into next year would deter appeals.

Wendy Thurm:

From what I read, MLB wanted to put players in the position of having to choose between appealing and starting with a clean slate next year. That most seriously affects Nelson Cruz and Jhonny Peralta.

Comment From Izzy
Could a team theoretically just spike a player’s meal or something in order to get them suspended?

Wendy Thurm: Could they? It’s possible. Still seems far fetched to me.

Comment From Gila Monster
Wouldn’t it be in A-Rod’s best interest to just admit to wrongdoing, but argue MLB is overstepping the JDA by not following the 50 game,100 game, life..etc. A Rod technically hasn’t tested positive yet…So he should just argue for 50 games?

Wendy Thurm: It looks like MLB believes it has evidence of multiple instances of PED use by Rodriguez over a number of years. If he admits to that, could result in a lifetime ban just under the JDA. Look for his attorneys to challenge everything.

Comment From Jamie
Who is Frederic Horowitz? How did he become arbitrator?

Wendy Thurm: Horowitz is a highly-respected and experienced arbitrator in Los Angeles. He was jointly selected by the players union and the league.

Comment From anthony
So, if you’re the arbitrator, given only what you or have reasonable confidence that you know, how do you rule? Do you think the punishment fits the crime?

Wendy Thurm: I simply can’t answer that. The breadth and credibility of the evidence are crucial.

Comment From shoeless
Do you have any information about what ARod might have done to obstruct the investigation that would be of a different character and quality than Melky’s fake web page so as to justify, in MLB’s mind, the additional suspension?

Wendy Thurm: As I noted in my post, there are reports that A-Rod tried to purchase Biogenesis documents for the purpose of destroying them. There may be more. 

As for the Melky fake website thing, I do believe A-Rod will point in the arbitration and argue that the games added to his suspension for “obstruction” were added arbitrarily and in an unfair manner.

Comment From Erich
It seems like the confidentiality aspect of the JDA was completely disregarded and repeatedly trampled on by MLB throughout the whole investigation. Did/do any of these players (A-Rod, specifically) have any grounds to use these confidentiality breaches to improve their positions in regards to punishment?

Wendy Thurm: Agree. The confidentiality of the process was breached early and often. There are no direct remedies for such breaches under the current agreements, but I’m sure A-Rod will make some argument about it during the appeal.

Comment From Brian
Wendy, thanks for your insight. Do you have any clarification about the appeals process that A-Rod is about to undertake? It seems as though when players are suspended under 7.A, the hearing takes place within 10 days. If suspended under 7.G, the hearing is within 20 days. And now there are reports that any arbitration case could last into November.

Wendy Thurm: Yes, there are different procedural rules. My best guess is that the parties will have a conference with the arbitrator ASAP and he will set a schedule — either one the parties agree to or one has to impose. The arbitrator will stay within the general time frames set forth in the JDA.

Comment From Jah
So, with Colon and Melky getting of the hook, what exactly is stopping these players with 50 game suspensions from continuing to juice?

Wendy Thurm: If Melky uses PEDs again, and is caught either in an investigation or through testing, he’d be subject to a 100 game suspension on a second violation.

Comment From Shark Mapiro
Do you expect Melky Cabrera’s post-steroid struggles this season to negatively impact the values of the contracts that Cruz and Peralta get this offseason?

Wendy Thurm: Teams will look at each player’s career performance, age, projected future performance etc. I’m PED use will play a role.

Comment From quickpitch
So ARod tried to buy the records to destroy them; does that warrant essentially adding 3x the length of the 50 games other players are getting? Is there something more sinister that MLB knows about? Melky didn’t get any enhancement for his stupid website trick or lying to investigators last year.

Wendy Thurm: I’ve addressed this in my post. We don’t know if MLB started with a 50-game suspension for A-Rod and added 161 games on top of it. MLB’s statement said that A-Rod used PEDs over several years. Perhaps they started with 100 or 150 game base (150 = 50 for first violation and 100 for second). But yes, anything added on top of 50, 100 or 150 is arbitrary.

Comment From Anon21
I certainly understand MLB’s desire to bully A-Rod into accepting a suspension with no appeal—no chance of the discipline being overturned, swift and certain, etc. Why do you think the commissioner’s office ultimately dropped the lifetime ban threat and went with a more conventional suspension (albeit for an arbitrary duration)?

Wendy Thurm: I addressed this in detail in my post now on the front page of FG

Comment From Matt (Steinway)
If Rodriguez disagrees with the arbitrator’s final ruling, is he able to then take MLB/Selig to civil court?

Wendy Thurm: The CBA and JDA are clear that the decision of the arbitrator is final and binding. Also, the US Supreme Court has held since the 1960s that arbitration decisions will not be overturned by courts unless there is evidence that an arbitrator acted fraudulently or with extreme bias. 

That settled law may not stop somone from suing if they lose before the arbitrator, but any such party would not likely get very far,.

Comment From Crusty
Would a good attorney normally try to get his/her client to refrain from having extended public dialog like Alex engaged in with the Pink Elephant press conference? Do you see long term damage to Alex’s relationship with MLB/Yankees from that “performance”?

Wendy Thurm: I don’t know enough of the facts to comment on what a good attorney would advise A-Rod.

Comment From Røark
Is it likely that if Braun had waited for a suspension to be handed out today he would have received a 50 game suspension instead of the 65 that he negotiated for? Or do you think that MLB would have leveled heavier penalties on him in the way they have with Rodriguez?

Wendy Thurm: I don’t know.

Wendy Thurm: That’s the end of the chat, folks. Sorry I didn’t get to all the questions. Feel free to leave questions in my post and will do my best to answer them over the next day.

Thanks for coming by.