Major League Baseball's dangerous new precedent in the Biogenesis case
Major League Baseball is reportedly on the verge of handing down sweeping suspensions to some 20 players — including All-Stars Alex Rodriguez and Ryan Braun — with alleged ties to Biogenesis, the shady Miami clinic that has been accused of peddling performance-enhancing drugs.
Yet while most baseball fans probably like the idea of MLB booting A-Rod for a while, that doesn't mean the league is in the right to do so — at least not in the way it has gone about it.
In January, the Miami New Times first reported that internal Biogenesis documents showed a number of pro players had received banned substances from the clinic. The league then embarked on a quixotic campaign to root out the cheaters, diving into uncharted legal territory in the process.
MLB unsuccessfully asked the New Times for those documents; it then offered to buy the information from former Biogenesis staffers; and finally, it launched a legally dubious lawsuit against former Biogenesis head, Tony Bosch. That lawsuit was ostensibly about recouping lost revenue that Biogenesis had cost the game by knowingly distributing PEDs to ballplayers. However, the lawsuit's real purpose was to compel Bosch to talk, since the league, unlike federal investigators, has no subpoena power.
It appears the tactic worked. Bosch has reportedly agreed to fully cooperate with the league in exchange for MLB dropping its lawsuit.
So is MLB a fourth branch of government now, or just an agency within the federal branch?
— Joe Sheehan (@joe_sheehan) June 5, 2013
The league's strong-arm tactics, as well as the decision to offer Bosch immunity in exchange for ratting out his clients, drew plenty of criticism. Until this week, the league had taken great pains to paint Bosch as a self-serving drug dealer. Now, it is basing a landmark case almost exclusively on his help.
"I'm good with suspending steroid users, but I'm not comfortable with that kind of arrangement," wrote Hardball Talk's Matthew Pouliot. "It's not cleaning up the game. It's a power play, and the real losers in all of it are the fans rooting for the teams affected by the suspensions."
Writing in Bloomberg, Jonathan Mahler argued that the Biogenesis case is beginning to look a lot like the NFL's Bountygate, in which league officials fervently pursued Saints players and coaches for allegedly establishing a reward system for injuring opposing players. "The NFL's zeal to protect its image resulted in an obsessive pursuit of a handful of players and coaches whom it never had the evidence to convict," Mahler wrote.
Given MLB's reliance on Bosch to support its entire case, Mahler said the league risked falling into the same trap of administering steep punishments for crimes it can't prove.
The ploy worked; Bosch is cooperating. But what, exactly, does baseball have here? Some sloppily kept records from a shady anti-aging clinic and a sketchy cooperator with every reason to tell league officials what they want to hear. Maybe there's more compelling evidence to come. But before he goes any further down this path, Commissioner Bud Selig might want to remember how badly Bountygate worked out for his NFL counterpart, Roger Goodell. [Bloomberg]
The league could very well wind up empty-handed in the end. Compelling Bosch to talk is one thing, but MLB investigators are still without the most solid proof: Failed drug tests. According to the league's own PED guidelines, those are what trigger suspensions.
"Without all of that, Baseball's ability to suspend players due to non-analytic positives — to establish proof that players violated the Joint Drug Agreement by using PEDs in violation of league rules, despite the absence of actual tests showing same — is tenuous," said Sport's Illustrated's Jay Jaffe.
Further, the league isn't looking at a standard 50-game suspension. Rather, it's seeking to mete out the 100-game suspensions reserved for second offenses. The argument is that a player committed his first offense in lying to the league about Biogenesis; his second would lie in Bosch's testimony and whatever paperwork he has.
The players' union would almost certainly appeal such suspensions by arguing that the league's reasoning is both a flawed interpretation of the tiered suspensions system, and that it skirts the policy entirely by failing to produce positive tests.
All told, MLB appears to have a flimsy case based on one unreliable witness, yet it is planning to hand out what would be the widest-ranging suspensions since the infamous 1919 Black Sox Scandal. There is still plenty of time for the case to develop and for more details to emerge, but right now it seems the league is preparing to set dangerous new precedents on multiple fronts.