Alex Rodríguez: A Union’s Dilemma (Part 2)

New York Yankees v Chicago White Sox

This once again brings the story back to Alex Rodríguez, his suspension and his appeal.

Rodriguez was blindsided by (1) the evidence that MLB had compiled and presented to him as well as what they originally offered to him as a penalty which was rumored to be from around Braun’s penalty or as much as the rest of 2013 and all of 2014 (I don’t give lot of credence to the rumors that said up to a lifetime ban) and (2) by the eventual and actual penalty of 211 games which effectively would have been the rest of 2013 and all of 2014. Rodríguez with his back up against the wall, and possibly fearing his multimillion dollar contract could be jeopardized, decided to appeal his penalty. But, his appeal appears to be not on a proclamation of innocence but on a failure to receive due process. Much like Braun based his appeal not on his innocence but on the violation of the chain of custody of the sample (although, in the court of public of opinion, Braun did try to claim the test sample was tainted and that he did not use any drugs) or in other words on a technicality. The assumption is that Rodríguez was paticipating in an ongoing program of taking drugs and then somehow being able to test clean (as it also is being assumed the MLB investigation found), and, that Rodríguez apparently thought that since he had never been in violation of the Joint Drug Prevention that he was risking only a 50-game suspension, or, what is the agreed upon penalty for a first-time offender.  But here is where MLB threw a curve at Rodríguez, they did not suspend Rodríguez for any failed tests rather they found him guilty of “just cause” violations of the CBA and the JDA as well as for possible violations involving “the participation in the sale or distribution of a prohibited substance” and that allowed Commissioner Bud Selig wide latitude in deciding discipline. Specifically, it is why MLB (Selig) believes they can assess a 211 game penalty against Rodríguez.

The reality is that drug-policy enforcement goes beyond testing and this reality, whether reluctantly or willingly, is accepted by and agreed to by the players. Specifically, CBA Article 7, Section A provides: “The Parties recognize that a Player may be subjected to disciplinary action for just cause by his Club, the Senior Vice President, Standards and On-Field Operations or the Commissioner. Therefore, in Grievances regarding discipline, the issue to be resolved shall be whether there has been just cause for the penalty imposed.”  And in Article 7, Section B, “just cause” is defined: “Players may be disciplined for just cause for conduct that is materially detrimental or materially prejudicial to the best interests of Baseball including, but not limited to, engaging in conduct in violation of federal, state or local law.”

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And, the Joint Drug Policy says in Article 7, Section F: “A Player who participates in the sale or distribution of a Prohibited Substance shall be subjected to the following discipline: 1. First offense: At least an 80-game but not more than 100-gamesuspension if the substance is a Performance Enhancing Substance …” and “2. Second offense involving a Performance Enhancing Substance: Permanent suspension from Major League and Minor League Baseball…” and then finally in Section G.2. of Article 7 is the following: “A Player may be subjected to disciplinary action for just cause by the Commissioner for any Player violation of Section 2 above not referenced in Section 7.A through 7.F above.”

The assumption, once again, is that MLB is alluding that Rodríguez has been doping and beating MLB tests for years. And with the Biogenesis leaked documents, they found the link to evidence that supported that claim. The irony is that Rodríguez only became the focus of MLB investigators simply over a money issue. Former Biogenesis employee and investor, Porter Fischer, handed over documents to the Miami New Times after him and the clinic founder, Anthony Bosch, had a dispute over financial arrangements. Until this information came to light MLB had no reliable evidence that linked Rodríguez and PEDs. Until that moment Rodríguez had been in the clear and the firestorm that now surrounds him probably would have never been ignited.  But once the Biogenesis documents and records were revealed they led to what seems to be a mountain of information that includes direct communications with Rodríguez and Bosch.

On August 04, 2013 Eugene Freedman (a national labor union Deputy General Counsel) posted on Hardball Times his thoughts that were entitled “ARod, the JDA and the CBA”. In this post Freedman said, and also confirmed territory already covered, that the burden of proof is on MLB and that “It will be interesting to read the charges once they are leaked. (Remember so far we, including the media, know nothing concrete about MLB’s evidence against Rodríguez.) Similar offenses require similar penalties. If MLB is truly pursing a suspension of the entire 2014 as well as the remainder of 2013, it far exceeds the penalty imposed on any other player. First use requires a 50-game suspension. MLB and the union appear to have agreed to that penalty contained in the JDA for all or nearly all of the other players implicated in Biogenesis.”

He goes on to stipulate that the JDA also has a provision for an  80-to-100-game suspension for distribution or sale of PEDs but that he has “… a hard time believing that providing Biogenesis’ contact information to other players constitutes distribution. Even so, 150 games is not 214 (sic) games.”
He then adds that “Unions frequently advise members to accept discipline when the evidence is very strong against them and the penalty is reasonable (Writers note: Exactly what Wiener has stipulated in the strategy now being taken by the MLBPA) … But in the case of Rodriguez, it appears MLB was intent on overcharging him and overreaching on the penalty.”

Freedman then says, “So, we are where we are today: headed to arbitration.”

(Note: Freedman also says the following in his post which I find exceedingly interesting: “Finally, it should be noted that Rodriguez will not and should not sue MLB, nor should MLB or the Yankees sue him for violating his player contract or in an attempt to void his contract. While there are people suggesting any number of lawsuits, including injunctive and/or declaratory relief, these suits would be dismissed. These are matters to be dealt with under the CBA’s negotiated grievance procedure. The United States Supreme Court decided a series of cases known as the Steelworkers Trilogy in 1960. In those cases, the Court decided that all disputes regarding matters related to or covered by the CBA must go to grievance arbitration and cannot be heard in the courts. This covers discipline and termination of contracts, and The Supreme Court also greatly restricted judicial review of arbitral awards.
Moreover, the JDA strictly prohibits individual clubs from taking action against players for violations of the drug policy. It vests exclusive power with the Commissioner. Whatever arbitrator Horowitz’s decision is in this case, as long as it draws its essence from the CBA, it is final and binding and not able to be appealed.”)

Rodriguez’s unpopular decision to appeal his 211-game suspension has equally angered some who believe he should accept his suspension and move on. Some, including Boston Red Sox pitchers Jon Lester, Ryan Dempster and John Lackey think he shouldn’t even be allowed to play in any games during his appeal. And while Rodriguez’s actions appear to have disgraced the game of baseball, he is, by a collectively negotiated agreement, entitled to appeal his suspension and be presented with the evidence the league has against him. This is his right as a MLB player: He and his attorneys will be allowed to view and challenge the evidence against him under the MLB’s collective bargaining and joint drug agreements.

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Personally, I believe, along with the majority, that Alex Rodríguez is as guilty as sin of violating MLB’s drug polices and is also probably guilty of, at the minimum, leading professional ball players to Biogenesis if not actually procuring new customers for Biogenesis. However, I, also, believe that until an arbitrator has held his hearing and heard all the arguments from both sides then Rodríguez has certain rights and entitlements. And, among those rights and entitlements is being able to play major league baseball until an arbitrator has rendered a final decision on MLB’s punishment given to Rodríguez.

My reading of the articles and clauses that are germane to any possible suspensions, leads me to a viable theory on how MLB comes to the 211 games. I just do not know if they are correct in making certain judgments. Specifically, if he actually led clients to Biogenesis then that could mean he is guilty of violating JDA Article 7, Section F (a player who participates in the sale or distribution of a prohibited substance) and depending on how many times he violated that rule then the penalties he is assessed could be the lower range of the proscribed range of 80 to 100 games per violation. That potentially could be grounds for lifetime suspension if not at least 160 of the 211 game suspension. So it could be said that MLB is being very magnanimous to Rodríguez in assessing only a 211 game suspension.

But, if Rodriguez did participate in the sale or distribution of a prohibited substance by leading clients to Bosch then how is that to be considered? Is it all considered as one violation or as separate and multiple violations? And this is just one facet of the case that needs to be looked upon and decided by an arbitrator. The waters surrounding this case seem simple but they are, instead, very murky and shaded with mystery and innuedo that need to be gone through with a fine tooth comb.

The point is we are in brand new territory as we enter a new era of MLB drug policy and drug policy enforcement and Rodríguez is the first challenge to MLB’s authority and ability to regulate drugs and punish any violators of those regulations. The fact is while Rodríguez may be guilty of all that we think he is, nothing has officially come to light and it may never come to be seen by any of us outside of certain circles in MLB and associated with MLB. And that is how it should be because that is part of what MLB and the MLBPA has agreed to, i.e., Confidentiality.

The bottom line is that MLB needs to prove to Rodriguez, and more specifically an arbitrator, that his first suspension under MLB’s drug policy is worthy of 211 missed games instead of 50. And, then, even if it is, was due process followed?

It is clear that the MLB community has improved baseball, and the ideal of fair play, by more strictly enforcing the use of steroids and banned substances. But some folks have said to use Rodríguez as a scapegoat is wrong and some have gone so far to say it is cowardly and vindictive. But, if MLB has the evidence to back up its argument for a 211 game suspension then it has the right to confront Rodríguez before an arbitrator to prove its case and validate the 211 game penalty. The rules allow Rodríguez his due process in his appeal but the rules also allow MLB to prove its case and that it has done its due diligence and homework in bringing forth the evidence to convict Rodríguez of his alleged wrongful behavior.

Until then, like it or not, Rodríguez has, by agreement of the CBA and the JDA, every right to play baseball on the major league level until such time as a decision on his appeal has been made. And he has the right to do so free of any fear of physical retaliatory activity from any of his trade unionist partners.

I once heard a long time ago the words: “I disapprove of what you say, but I will defend to the death your right to say it”. Well I disapprove of Alex Rodríguez and what I believe he has been involved with over his entire baseball career but I defend his right to face his accusers and challenge any penalties assessed against him and to have it done within a colletively bargained system that is duty bound to follow certain rules and policies.

If he did what is being alleged, then I wish he would go behind closed doors and negotiate a settlement and let us all be done with this sordid little scandal and move on. But the final answer is the system was designed to protect the rights of the players and that includes Alex Rodríguez. Maybe he is guilty as all get out but he has the right to an appeal and a right to confront his accusers and hear the evidence against him. Until then he is offically assumed to be “innocent”, and despite what the court of public opinion thinks to the contrary, only one man’s opinion matters now: A 64 year old Californian by the name of Fredric Horowitz, professional arbitrator and mediator.

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