Breaking down Frederic Horowitz’s decision in Alex Rodriguez case
When Alex Rodriguez filed suit against Major League Baseball and the Major League Baseball Players Association on Monday, the entirety of arbitrator Frederic Horowitz’s previously confidential decision was made public as part of the suit. You can download a PDF of the 77-page document here; Horowitz’s decision begins on page 44. What follows are the most important take-home points you need to know. (NOTE: All quotations below come directly from Horowitz’s writing.)
1. What banned substances did Rodriguez take?
According to the evidence, Anthony Bosch, the operator of the Biogenesis clinic, designed a daily drug regimen for Rodriguez consisting of four phases lasting 30 days apiece, including multiple banned substances as well as legal ones. The banned ones for which Horowitz ultimately upheld the suspension were testosterone in the form of transdermal creams and oral lozenges, insulin-like growth factor 1 (IGF-1) and human growth hormone (hGH).
Also in the regimen was human chorionic gonadotropin (hCG), the fertility drug for which Manny Ramirez was suspended in 2009, and dehydroepiandrosterone (DHEA), a legal dietary supplement that isn’t banned by baseball but is banned by the NBA and the World Anti-Doping Agency, which oversees the drug testing of the Olympics.
In their BlackBerry messages, Bosch and Rodriguez used code names for the banned substances, referring to them in general as “food,” with names like “Gummies” (lozenges), “Pink Food” (transdermal cream), “Liquid Soup” (melted lozenge), “Cojete” or “Rocket” (syringe containing HGH and IGF-1, among other things).
2. Where did Rodriguez get the substances, and how long did he take them?
Bosch designed his first regimen for Rodriguez in August 2010, supplying him drugs through Rodriguez’s cousin, Yuri Sucart, and through Jorge Velazquez, the client of Bosch’s who had introduced Sucart to Bosch. Initially, Bosch and Rodriguez used Sucart and Velazquez as conduits for exchanging cash and drugs, but after Rodriguez fired Sucart in late 2011, Bosch began giving supplements directly to Rodriguez. Over the course of 2011, Bosch and Rodriguez met “at least four or five times,” according to the report, with Bosch drawing blood and infusing Rodriguez with substances that always included testosterone and HGH. In 2012, Bosch personally treated Rodriguez “at least twice per month,” personally injecting him and supplying him with the banned substances as part of his monthly protocol.
3. How did Rodriguez get busted?
In December 2012 or January 2013, Bosch discovered that his notebooks covering several years’ worth of information regarding several clients were missing, including his notes concerning his treatment of Rodriguez and other major leaguers. The notes had been stolen by former Biogenesis client/investor Porter Fischer. When Bosch refused to pay him for the notebooks, Fischer gave copies to the Miami New Times. Bosch informed Velazquez of the theft, and soon Rodriguez’s attorney, Roy Black, or one of Black’s employees purchased those notes from Fischer for $10,000.
On Jan. 25, 2013, MLB received copies of letters from the Miami New Times to various teams advising that a player (or players) on those teams was involved in the use of PES (performance-enhancing substances). MLB requested the source documents from the Miami New Times, but the request was rejected. Prior to the Miami New Times‘ publication of the story, MLB sought to purchase the Bosch notebooks from Fischer, who initially accepted $5,000 cash “for consulting services” but rejected a $125,000 offer for the documents. On Jan. 29, 2013, the Miami New Times published its story implicating Rodriguez and Bosch. On Feb. 5, Yahoo! Sports published additional excerpts from the Biogenesis documents implicating Ryan Braun and Danny Valencia as Bosch clients.
“Sometime later,” MLB later paid Gary Jones (working under the alias “Bobby”) $100,000 for “four jump drives containing copies of Bosch’s composition notebooks” excerpted by the MNT, and an additional $25,000 for documents “that MLB determined were not helpful to its investigation.” On March 22, 2013, MLB filed its civil complaint agianst Bosch, alleging unlawful conduct and tortious interference with the Joint Drug Agreement. On April 25, 2013, Bosch was cited by the Florida Department of Health for the unauthorized practice of medicine, fined $1,000 and assessed an additional $4,000 in costs by the FDH.
In late May 2013, an investigator working for Rodriguez attempted to get Bosch to sign a document attesting that he never supplied Rodriguez with performance-enhancing substances (PES) and had no personal knowledge that he had ever used such substances; Bosch refused to sign. On June 3, 2013, MLB and Bosch entered into a mutual cooperation agreement with Bosch promising “to proffer truthful information to MLB and testify if necessary regarding any Major League Player or individuals acting on their behalf regarding the acquisition, possession, or use by them of any PES,” in exchange for which MLB promised to dismiss Bosch and his brother from the civil suit and to inform law enforcement agencies of his cooperation.
4. What were Horowitz’s findings?
The evidence confirms that Rodriguez used and/or possessed three discrete PES (performance-enhancing substances) banned by Section 2.B. of the JDA during the three-year period in question: testosterone, IGF-1, and hGH. Direct evidence of these violations was supplied by the testimony of Anthony Bosch and corroborated with excerpts from Bosch’s personal composition notebooks, BBMs (BlackBerry messages) exchanged between Bosch and Rodriguez, and reasonable inferences drawn from the entire record of evidence.
He added, “Contrary to the claim of Rodriguez, the challenges lodged to the credibility of Bosch’s testimony do not effectively refute or undermine the findings of the JDA violations.” Despite Bosch’s initial denials and invocation of Fifth Amendment rights, Horowitz ruled that he cooperated with the investigation by “providing truthful information” in exchange from indemnification in MLB’s civil suit. His testimony under oath about JDA violations “was direct, credible and squarely corroborated by excerpts” of the notebooks that were stolen. As to the fact that Rodriguez was not caught by MLB’s testing, Horowitz wrote:
The claim by Rodriguez that science exonerates him in this case is not supported by any evidence in this record. It is recognized that Rodriguez passed eleven drug tests administered by MLB from 2010 through 2012. The assertion that Rodriguez would have failed those tests had he consumed those PES as alleged is not persuasive. As advanced as MLB’s program has become, no drug testing program will catch every Player. In this case, the blood testing required to detect hGH or IGF-1 had not yet been implemented by the JDA and therefore was not administered during the 2010, 2011, and 2012 seasons.
Horowitz went on to note that as instructed by Bosch with regards to the timing and rote of administration of the various testosterone supplements, it was possible for Rodriguez to avoid detection. “For these reasons, the absence of a positive test… does not and cannot overcome the unrebutted direct evidence in this record of possession and use.”
Horowitz also agreed with MLB’s charges regarding obstruction. “In this case, the evidence considered in its entirety supports a minimum of two such violations” designed to cover up the Bosch-Rodriguez relationship and impede MLB’s investigation. The first was for Rodriguez falsely denying being treated or advised by Bosch and the second for attempting to get Bosch to sign a sworn statement on May 31, 2013, attesting that Bosch never supplied Rodriguez with PES or had personal knowledge of using such substances, statements that Rodriguez knew to be false.
Horowitz decided to take no action against either Rodriguez or MLB with regards to claims over breach of confidentiality.
5. What was Horowitz’s reasoning in upholding the suspension?
Having found Rodriguez in violation of the JDA and Basic Agreement, Horowitz ruled that the governing framework of the JDA was Section 7.G.2, covering continuous and prolonged use or possession of multiple substances, rather than Section 7.A., mandating punishment for a single positive test, thus allowing the commissioner to go beyond the disciplinary schedule outlined in the latter section in determining an appropriate penalty.
Horowitz cited a 2008 decision concerning Neifi Perez in which the arbitration panel decided that the language of the JDA “reasonably implied a general understanding that separate uses [of different prohibited substances] are subject to separate discipline.” He noted that if the Commissioner were bound by Section 7.A. and the Perez precedent, he could rightfully administer a lifetime ban to Rodriguez for committing at least three separate violations (50 games for the first, 100 for the second, lifetime suspension for the third). In suspending him for the remainder of 2013 and all of 2014, the Commissioner was imposing a suspension that was “reasonable and appropriate” because at a minimum, the three distinct substances were worthy of three 50-game suspensions, that without factoring in the obstruction findings.
Horowitz further found that the suspension was not out of line with past just cause precedents within the industry, many of which concerned Drugs of Abuse, citing Steve Howe’s 1992 suspension of 119 days for repeated cocaine abuse. He rejected the MLBPA’s reliance on the 2006 50-game suspension of Jason Grimsley for a non-analytic positive via use or possession of hGH for a significantly shorter time period, cited the upholding of Guillermo Mota’s 2012 suspension for 100 games and also noted that no MLB player has been suspended for any substance abuse violation for longer than one season. In all:
Given the comparative penalties received by MLB Players for PES violations and other drug violations in the past, the disciplinary framework of the JDA, the fact that Rodriguez had no prior PES offense, the number and frequency of Rodriguez’s intentional violations of the JDA, the prolonged time period over which Rodriguez’s violations occurred… the number and forms of Prohibited Substances that Rodriguez used and possessed, and the incidents of attempted obstruction described above, a suspension of the entire 2014 season and 2014 postseason is supported by just cause.
Horowitz further ruled that contentions by Rodriguez and the MLBPA that the penalty should be reduced due to MLB’s misconduct was not supported by the evidence, finding MLB’s arrangement with Bosch and the conduct of MLB’s investigators in purchasing the documents from Gary Jones to be acceptable.
Rodriguez is now suing MLB and the MLBPA in an effort to vacate the suspension on the grounds that Horowitz was biased, disregarded the law and refused to consider certain evidence that was pertinent to the outcome of his ruling, and that the union breached its duty of fair representation. You can read SI contributor Michael McCann’s evaluation of his chances of prevailing here.