A-Rod, others could be disciplined this week, but Biogenesis saga far from over
The next wave of Biogenesis-related suspensions is likely to be handed down this week, with that of Alex Rodriguez probably the first to be issued. That’s the upshot of multiple reports circulating Sunday, though the likelihood is that this sordid scandal won’t be resolved in such a tidy fashion. As we’ve seen for months with regards to this case, no disciplinary measures are ever as imminent as they’re presented to be.
On Sunday, the New York Post‘s Joel Sherman and Ken Davidoff reported “strong indications” that Major League Baseball will announce all of the remaining suspensions this week, “including one that could cover the rest of this year and all of next season for Alex Rodriguez.” By doing so, the league wants to formalize the suspensions while there are still more than 50 games to play in the 2013 season, creating an incentive for first-time offenders to accept a suspension equivalent to that of an analytic-based first-time offense (i.e., one based upon a failed urine or blood test) and still return in time for either the postseason or the beginning of next season.
Leaving Rodriguez aside for the moment, the problem with this tactic is that there’s no guarantee that the remaining players — said to be 20 to 25, including minor leaguers, according to ESPN’s T.J. Quinn — will all agree to bans that quickly. The minor leaguers, who aren’t protected by the Major League Baseball Players Association, won’t have such recourse, but many of the major leaguers may choose to appeal, with each case heard by a single independent arbitrator, Frederic Horowitz. It will be up to Horowitz to determine on a case-by-case basis whether the penalty imposed by MLB is in line with the evidence presented by the league and consistent with the policy in the collectively bargained Joint Drug Agreement.
During the All-Star break, union executive director Michael Weiner said that such appeals probably wouldn’t be heard until September, and could run into the offseason. That’s under the assumption that MLB won’t fire another arbitrator if a ruling goes against them. Such was the case with Shyam Das, Horowitz’ predecessor; after serving as baseball’s arbitrator for more than 13 years, Das was dismissed in May 2012 by MLB management after he overturned the suspension from Ryan Braun on the grounds that his urine sample was not handled according to the protocol outlined in the Joint Drug Agreement. MLB has a history of dismissing arbitrators who rule against the league, among them Peter Seitz, who ruled for the players in the landmark Messersmith-McNally case that led to free agency in 1975, and Thomas Roberts, who ruled that the owners colluded against free agents in 1985-1986.
As for Rodriguez, though he has never tested positive since random testing was introduced in 2004, he is said to be facing a longer suspension than the other players for two main reasons. First, he reportedly failed the supposedly anonymous 2003 survey test, as reported by SI‘s Selena Roberts and David Epstein back in 2009; when that revelation became public, Rodriguez confessed to having used performance-enhancing drugs in the 2001-2003 period, before the league had testing or any penalty process in place. Second, he is alleged to have obstructed the Biogenesis investigation — one allegation says that he purchased documents from a former clinic employee in order to destroy them — and to have lied to investigators about his connection to the Miami-area clinic.
The New York Daily News‘ Bill Madden, Teri Thompson and Michael O’Keefe reported Sunday that MLB expects to know by Monday whether Rodriguez will agree to a deal that will suspend him for the rest of this year and all of next:
According to a source familiar with the discussions between MLB officials and A-Rod’s representatives, if Rodriguez accepted a settlement that would call for him to be suspended for the rest of this year and the entire 2014 season without pay, he would still have a chance to collect the $60 million the Yankees would owe him from 2015 to 2017.
The deal would allow MLB to impose the suspension immediately and avoid arbitration. If Rodriguez declines the deal, commissioner Bud Selig is expected to pursue what would be an historic suspension that would ban the 38-year-old Rodriguez from ever returning to the field.
The Daily News, which has a long track record of wishing Rodriguez away that runs contrary to contract law, the Collective Bargaining Agreement, and common sense, suggested that such a route could effectively end Rodriguez’s career — he wouldn’t be eligible to play again until he was nearing his 40th birthday — but leaves open the possibility that he could still have a chance to collect the $61 million remaining on his contract from 2015 -2017. According to their reasoning, via such a suspension, “he would likely be forced to retire and would then be placed on baseball’s permanently unable to play list, at which point there would be negotiations among A-Rod, the Yankees and both sides’ insurance companies over a settlement that would pay him the balance of his contract.”
Why Rodriguez would retire under that circumstance isn’t explained by the Daily News, which previously floated a retirement angle that bordered on insurance fraud. As embattled as he may be, Rodriguez is still a competitive athlete who is far better at baseball than at the rest of day-to day-life, more at home on a diamond than anywhere else. If he’s suspended, he’s likely to be motivated to remain in strong enough shape to make a return. More than a year removed from his second hip surgery, by then he may actually be in better shape than he is today. It’s not as though the Yankees will be able to void his contract, however much Madden and his ilk may wish it were so.
In any event, it doesn’t sound as though A-Rod is going quietly. Via “a source close to Rodriguez,” the Daily News also says that the slugger is unwilling to cut a deal. “If there is a suspension,” the source said, “he will fight it.”
That appears to be a solid strategy, because he’s likely to fare better in front of a neutral arbitrator than in front of a commissioner attempting to score political points by throwing the book at a player he has long sought to discipline. Even if the league has as much evidence delineating Rodriguez’s connection to performance-enhancing drugs obtained from Biogenesis as it is said to have — a “skyscraper of documentation” compared to “a Lego block” of evidence against Ryan Braun, as Sherman wrote last week — it will be difficult to convince the arbitrator that any infraction Rodriguez committed during the 2001-2003 period can be counted as a prior offense, since baseball did not have a testing program or penalties in place at the time.
Additionally, Rodriguez’s legal team may also look to challenge the validity of the evidence MLB is using against their client. MLB is said to have paid a former Biogenesis employee for evidence, and sued clinic operator Tony Bosch, whom the league spent months painting as a disreputable lowlife, in order to apply financial pressure so that he would turn over documents. That defense strategy could be complicated by Braun having not challenged such evidence or appealed his suspension, but the Milwaukee slugger may have done so to avoid airing more of his own dirty laundry via the exposure of further details regarding his 2011 positive test.
Assuming Rodriguez does choose to fight, his appeal could delay the resolution of other appeals, which again is why it’s difficult to take any report of imminent suspensions at face value. Of course, because of the Joint Drug Agreement, the public isn’t even supposed to know about PED suspensions until the appeals process has been completed, but MLB has argued that since the cases are already public knowledge, it has the latitude to announce suspensions before they’re appealed. Because of the difficulty of getting all of the charges to stick, MLB is more than happy to air as much as possible before the court of public opinion, content to let public ire pick up where the league’s capability of punishment ends.