There’s been a fair amount of teeth-gnashing on Twitter today about MLB’s attempt to suspend Alex Rodriguez for life, or at least for a reeeaaallly long time. The general consensus seems to be that the MLB – MLPAA Joint Drug Program (JDP) sets suspensions at 50 or 100 games, and that, as ARod as never had a “positive test,” he should be subject to a 50-game suspension as a result of his involvement in the Biogenesis scandal. That is, of course, if you think the MLB has good, solid, non-paid for evidence against ARod, which many of you don’t.
But let’s set that aside for a second. I’m going to do my best to lay out MLB’s argument (not because I’m necessarily on their side, though ARod is not a huge favorite of mine, but because you all seem to have a handle on the MLBPAA’s argument already, which pretty much amounts to “No fair! No takebacks!”)
First, a little about me. I practiced law for 15 years, and I still get roped into practicing it on occasion. I’m trying to lay this out for you not because I’m any smarter than you, but because law school ruins your brain and makes you think about things in a totally weird way that no human would ever think of. This is why so many lawyers share a certain bond: We know our brains have all been destroyed in a similar fashion.
Thinking of things in a weird way is necessary in order to perform the requisite legal gymnastics one sometimes has to do in order to fight for a client. Like, say, when your client is caught on video shoplifting, and still insists he’s innocent and demands a jury trial. A normal person would say “you’re screwed.” A lawyer says “You’re screwed but don’t worry, I’ll come up with something.” And then next thing you know, you’re standing in front of a jury arguing that the prosecution didn’t prove that you client doesn’t have an evil twin and, by the way, where IS that evil twin? And why didn’t the prosecution call him as a witness? What are they hiding?
So it’s in this vein that I’m looking at the JDP, which was entered into by the MLB and the MLBPAA. I’m trained to make and anticipate ridiculous arguments, which makes me perfect for the task at hand. That said, away we go.
And there’s really one section of the whole JDP that everyone is fighting over. Here it is:
This is the section of the JDP that the MLB typically uses to suspend players that test positive. Keep that in mind. Also, note how the words “possession” and “use” play major roles in that first paragraph. With me so far? So, if a player violates Section 7(A) – 7(F) of the agreement, which sets out a bunch of specific violations (selling, using stimulants, etc) they get a 50-game suspension, a 100-game suspension, or a lifetime ban.
But then there’s Section 7(G)(2) of the JDP, which says this:
The problem really comes with section 7(G) here, which says that a player can be subjected to disciplinary action any ol’ time Bud feels like it for anything Bud thinks is a good reason. This is what’s referred to as a “catch-all” phrase, or, more accurately, a “cover-your-ass-in-case-you-forgot-to-put-something-in-the-JDP-that-you-really-want-to-do-later” phrase.
Note: I keep seeing writers and reporters talking about the “non-analytic” positive section of the JDP. If someone could point that section out to me, I would appreciate it, because I can’t find it. In fact, I really have no idea what they’re talking about. If there was a non-analytic positive section of the agreement, we wouldn’t be having this conversation.
All that said, here’s the argument, in a nutshell:
MLB: ARod is a big jerk and he used PEDs and lied to us and hurt our feelings. We want him suspended forever and ever.
MLBPAA: You can’t prove it. And anyway, you can only suspend him for 50 games for a first offense of “possession” or “use” of PEDs, See Section 7(A).
MLB: Take off, Hosers. A “non-analytic positive,” which we just invented right now, isn’t covered under Section 7(A) -(F). It falls under Section 7 (G), so we can do what we want. And we want to suspend him forever and ever.
MLBPAA: Sorry, you can give him 50 games and that’s it.
MLB: Oh yeah? Well Ryan Braun agreed to 65 games. So there.
MLBPAA: Ryan Braun sucks and designs crappy t-shirts. You’re stuck with Section 7(A).
MLB: Oh yeah? Well, we don’t even have to use the JDP. We can suspend ARod under the “best interests of baseball” clause of the collective bargaining agreement.
MLPAA: You so cannot do that. That’s why we have a JOINT DRUG Program. To address DRUGS. JOINTLY. You know, the one we created specifically for situations like this?
MLB: We’ll just see about that.
And on and on and on. This argument has worked with the likes of Ryan Braun and other players who are reportedly set to accept suspensions within the next few days. ARod, on the other hand, is nothing if not incorrigible, so he’s not buying what MLB is selling. MLB is now faced with having to explain why what ARod is accused of doing with Biogenesis is neither “possession” nor “use,” but some new, weird, third thing that isn’t covered by the JDP.
So we’ve narrowed it down to 2 main questions:
1) Does the evidence collected via Biogenesis amount to “possession” or “use” of PEDS under Section 7(A) of the JDP?
2) If not, does Section 7(G) of the JDP mean that Bud can invoke the “best interests of baseball” clause of the collective bargaining agreement?
The real problem, as far as I can tell, is that there’s no real definition of what constitutes “possession” and what constitutes “use.” I mean, these seem like simple words that we can all agree on the definitions of, but contracts get hung up on simple words all the time, This is why most contracts (and all CBAs are just contracts between the parties) have a “definitions” section standard, wherein they say “possession means THIS” and “use means THIS.” Unfortunately, as long as a non-analytic positive isn’t defined (because MLB just made it up right now), there’s room for argument over where it fits into the JDP, if it does at all.
There’s also been much wailing over the fact that MLB offered ARod an X number of games suspension if he agrees to take a suspension, and an X +25-game suspension if he appeals his suspension. In effect, MLB is asking ARod to take his suspension and shut up about it.
This is no different than what happens in legal cases all over the country every day. If you reach an agreement with the other side, you get a better deal than you do if you go to court (or in this case, arbitration) and make a big stink about it. If there was no benefit to entering a plea deal or settling a case, people would never do it. Lawyers call this a “trial tax.” It’s the way of the world, and ARod actually has it better than most people with employment contracts do. Most of us don’t get three chances to violate our employer’s drug policy before we get “suspended for life,” AKA: FIRED. My point? Offering someone a better deal if they plead guilty / settle is a common practice and nothing to get upset about. Or, rather, it IS something to get upset over, but save your outrage for the innocent guy who pleads guilty and spends three years in the jail because he’s looking at 10 if he goes to trial and loses.
So the bottom line is that an arbitrator might not agree with MLB’s position, but the argument they’re making is no different from the ones made in courtrooms around the country every single day, especially in cases involving unions and employers. So no need to be shocked and appalled. Unless, of course, you want to be equally outraged by every employer in the nation who tries to find a loophole to get around a CBA.
I think simply coming to a conclusion about whether MLB can or can’t do this to ARod is somewhat simplistic. After all, judges, juries, and arbitrators often decide how they want the case to come out, and then make up a rationale to get there. This happens from small claims court all the way to US Supreme Court. So you can think MLB’s argument is completely ridiculous, and it might be. But ARod isn’t exactly a sympathetic character, and those who make decisions in this country often make judgments that leave us all scratching our heads.
So who will win this case? I have no idea. I have an opinion about whose argument is better, but if better and smarter arguments won legal cases with regularity, there’d be a lot of lawyers out of work.