Wednesday, July 17, 2013
MLB’s difficulties in the Biogenesis casePosted by Eugene Freedman
Major League Baseball’s intent to suspend the players linked with the Biogenesis investigation raises some interesting questions. I reviewed some of them in this piece. I also discussed the logistical difficulties with suspending 20 or more players at the same time in a second, concluding that these cases are best heard in the offseason. This article will describe the actual burdens of proof that the clubs must meet in order to have any grievances over suspensions for violating the Joint Drug Agreement (JDA) and other potential charges denied.
There are multiple types of violations of the JDA. Under Section 7(A) of the JDA there are violations that are based upon a positive test (frequently referred to as analytic violations—although not in the JDA) and violations for use or possession (non-analytic violations). There are violations for conviction or possession of a prohibited substance as well as violations for participation in sale or distribution of a prohibited substance. There are violations for refusing to take a test without good cause and for adulterating a specimen. There are also violations for failure to comply with evaluation and treatment plans, but those are for drugs of abuse.
Finally, there is the additional possibility for a just cause discipline for something not specifically referenced in the JDA.
In the potential Biogenesis-related suspensions, the discipline levied against employees is assumed be based upon the non-analytic violations, although there is some discussion that the just cause-type charges may also be alleged. This places the clubs in a difficult predicament. As I mentioned in my June 5 article, MLB has argued strenuously that its testing procedure is the best in American professional sports and perhaps even the best in the world. Yet, none of these players has tested positive. Proposing suspension of these players undermines the lauded testing procedures. That said, it also changes the way the grievances must be handled.
Normally there are two proof issues in a discipline case: proving the conduct and proving that the penalty imposed is reasonable and proper. Both are the employer’s responsibility and a preponderance of the evidence standard is applied.
Violations of the analytic provisions of the JDA are strict liability offenses. This means that intent of the player is irrelevant. Believing she was 18 is irrelevant in a criminal case of statutory rape; if she was truly 15, you’re guilty. Believing that it was flackseed oil is irrelevant; if you test positive for androstenedione, you’re guilty. Additionally, the penalties for violations are already set forth in the CBA. Mandatory minimums and maximums are written in black and white. So, for an analytic positive, the employer’s case is quite simple: prove that the employee tested positive and that that required protocols were followed and the grievance will be denied and the suspension upheld.
But, for non-analytic based suspensions, the elements of the case are quite different and much more complicated to prove. In these cases, the charges are expected to be for possession or use of a substance on the prohibited list or for a just cause violation. Wendy Thurm recently analyzed the subject of possession and use over at Fangraphs and I agree with her—use and possession are covered by the CBA, so the penalties would be applied by an arbitrator.
I think MLBPA Executive Director Michael Weiner’s statement that for non-analytic tests the 50-100-life suspension penalties do not apply is a position of the MLBPA, not necessarily a fact. He also may be indicating that MLB plans to charge under the just cause provision not use and possession.
Use would be a much harder case for the clubs to prove. In non-baseball cases in which the employer refused to provide a blood test or urinalysis despite the employee’s request for one, the employer has been prohibited from relying on supervisory observations for evidence. In this situation it’s worse for the clubs because baseball’s very own tests for the vast majority of these players have been negative. Given that the tests were positive for several players reputed to have used Biogenesis’ products, negative tests would likely be exculpatory.
Possession is somewhat easier to prove than use, but difficult nonetheless. For criminal possession, every statute requires both a criminal act and a criminal intent. The state must prove that the accused knew that the drug was a controlled substance (intent) and the drug was in the person’s possession or constructive possession (act). That is quite different than a strict liability standard for analytic positives, where the test itself proves the act and there is no intent standard.
If this were a criminal case, a player attempting to buy creatine, who instead buys tainted creatine powder containing nandrolone, would not be guilty of the crime of possession. In a positive test under the JDA it wouldn’t matter what the player believed. However, in a possession case, I believe an arbitrator would apply the same standard as in a criminal possession case and the clubs would have to prove both possession and intent to possess a substance on the prohibited list.
It becomes exceeding complicated when the testimony of all of the employer’s witnesses has been paid for by MLB and several of those witnesses have already gone on public record denying providing prohibited substances to players. It is also difficult even if the Biogenesis witnesses are to be believed if the players made the alleged purchases through intermediaries who will not testify.
If I showed up at an anti-aging clinic and said I was buying something for a player, the clinic sold it to me, the clubs would need not just the clinic owner who made the transaction and any contemporaneous notes, but also me to testify that it was for the player and I gave it to him. Otherwise, the burden of proof is not met. It’s not exactly the same as chain of custody, but it’s quite similar, as all elements of the transaction have to be proved.
Another question is under what provision the clubs might suspend players for failure to cooperate with the investigation. Several leaks reported that Ryan Braun refused to answer any questions. Unlike in criminal investigations, there is no Fifth Amendment right to invoke against self-incrimination. But, it is still the employer’s burden to prove the elements of the charge. If Braun only denied the charge, no different than he is likely to do during the hearing, the charge of failure to cooperate in the investigation becomes nothing more than a compounding charge. Braun’s denial or non-participation only becomes a problem if MLB can prove the underlying charge.
Moreover, it’s harder to prove lack of candor than it is providing a false statement when all they have to go on is a denial or non-answer. Also, there are no penalties laid out for these types of violations in the CBA. Therefore, the clubs bear the burden of proving any proposed penalty is fair and reasonable for the violation. As Michael Weiner said at his pre-All-Star Game press conference, a violation under the just cause provision could result in a five-game or 500-game suspension. The same would be true for other alleged conduct.
Yet, what he left out is that MLB has to prove such a penalty is warranted. Consistency of penalties plays a role. Did MLB propose additional discipline against Melky Cabrera for his fake website and attempted cover up of his 2012 positive test? If not, it may have a hard time convincing an arbitrator that a 150-game suspension for Alex Rodriguez or Braun is warranted.
There is also the concept of double jeopardy, which would apply to those who have already been suspended under the analytic provisions—Melky Cabrera, Bartolo Colon, Yasmani Grandal. If their defense is "yes, I did use the drugs provided by Biogenesis, but you’ve already caught me and suspended me for that use" the clubs’ case would be exceeding difficult.
One arbitrator couched how double jeopardy is viewed in arbitration this way: “the key to this arbitral doctrine is not the Constitution but rather fundamental fairness, as guaranteed by the contractual requirement of ‘just cause’ for discipline. Thus when an employee has suffered a suspension for an offense it would be unfair… to fire him before he has committed a second offense.” The clubs’ case would have to include evidence that these were separate instances in order to pursue a charge of second offense use or possession under the JDA.
Overall, I think that these charges are very hard to prove in light of how MLB is presumed to have gotten the evidence and testimony. And, I believe overreach in proposed suspensions will likely make the cases like MLB lost, even if it is able to have some suspensions upheld.
What would the headline be if the clubs propose 200-game suspensions for A-Rod and Braun and get only a 50-game suspension upheld for ARod, and Braun gets off under double jeopardy? What about Melky having his 100-game suspension overturned because it’s not a second violation? MLB is not known to tread cautiously in these types of situations, but if it’s attempting to have discipline actually applied, it must be judicious, fair, and apply reasonable standards to its proposed penalties.
Eugene Freedman is Deputy General Counsel for a national labor union. He received a degree from Cornell University in Industrial & Labor Relations and his law degree from University of Maryland. Follow him on twitter @EugeneFreedman.