Answering the legal questions raised by the Biogenesis scandal

Mike Stobe

Ten questions, with ten answers, on yesterday's suspensions, from Purple Row's resident lawyer, Chris Chrisman.

As you know, major league baseball suspended 13 players yesterday based on evidence that they obtained performance-enhancing drugs from the Biogenesis clinic run by Anthony Bosch. These players join Ryan Braun on the punishment list for their connections to the Miami-based "wellness" clinic. Thirteen of the players (including Braun) have decided not to challenge their suspensions through an appeal, opting instead to serve the suspensions immediately. The one dissenter is Alex Rodriguez, who was suspended yesterday through the end of the 2014 season, but has announced that he will appeal. If upheld, Rodriguez's suspension would be the longest for a prominent active player since Joe Jackson, who was banned for life.

The Biogenesis scandal is chock-full of legal issues, some of which are straightforward, others less so. Here is a brief primer on some of these issues:

1) What's the origin of the Biogenesis allegations?

In January 2013, the Miami New Times reported that several players, including Ryan Braun and Alex Rodriguez, had obtained performance-enhancing drugs from Anthony Bosch and his Biogenesis clinic. The story was, by all accounts, new news to Major League Baseball, which began an investigation.

2) What evidence did MLB have against the suspended players?

Very little of the specific evidence against the suspended players and obtained by MLB has been made public, but media reports describe bank receipts, shipping documents, text messages and phone logs. There also was, presumably, the testimony of Bosch himself.

Bosch is hardly a model witness: he's a pusher with a fake medical degree who flipped on his former clients in order to avoid liability. Alex Rodriguez will get his chance to test Bosch's credibility soon enough. But plenty of cases, particularly criminal cases, are based on the testimony of "snitches" and "flippers." Sammy "The Bull "Gravano and Henry Hill are two notable examples of witnesses who were hardly upstanding citizens, and who were subjected to withering cross-examinations at trial, but whose testimony was crucial to the conviction of their associates.

3) How did MLB obtain this evidence, along with the cooperation of Anthony Bosch?

The Miami New Times refused MLB's request to disclose the documents supporting its January 2013 story. As a result, MLB took a different approach, suing Bosch and his associates in Florida state district court on March 22, 2013. MLB alleged that Bosch and the other defendants engaged in tortious interference with existing business relationships between the players associated with the Biogenesis clinics and their respective clubs. "Tortious interference" is a ten-dollar term for a straightforward idea: if you and I have a contractual relationship, a third party can't intentionally tempt one of us to break our contract. If I succumb to that temptation and break our contract, and you are damaged as a result of my breach, you have a claim against that third party tempter.

MLB alleged that Bosch et al. intentionally induced players to breach their agreements with their ballclubs by purchasing performance-enhancing drugs in violation of the Joint Drug Agreements. It's a clever legal theory. Some baseball commentators with legal backgrounds immediately concluded that the lawsuit was meritless, but others (myself included) didn't believe that a judge would throw out the suit that quickly. Courts rarely dismiss lawsuits early on, and even then only when it's crystal clear that the plaintiff has no claim. While MLB's tortious interference suit stretched the boundaries of the tort claim (how was Bosch inducing players to breach their contracts; weren't they coming to him?), it was never likely that the court would throw out the claim in the early going.

Faced with a lawsuit, Bosch quickly caved and agreed to cooperate with MLB, including by turning over relevant documents. MLB likely was never interested in obtaining a judgment against Bosch for money damages; the lawsuit was leverage to obtain information against the players associated with Bosch's clinic. While on the surface this may appear unseemly, the reality is that businesses file lawsuits to gain leverage every day. So long as there is a legal basis for liability based on the facts as alleged, a lawsuit is generally permissible.

4) If these players didn't test positive for PEDs, how could MLB suspend them?

The players suspended by MLB yesterday did not fail a test for PEDs. A failed test is a violation of the Joint Drug Agreement, and would establish per se grounds for a suspension pursuant to Section 7(A). But the Joint Drug Agreement doesn't stop there. Section 7(G)(2) provides that "[a] [p]layer may be subjected to disciplinary action for just cause by the Commissioner," notwithstanding the lack of a failed test. In essence, the Joint Drug Agreement recognizes that circumstantial evidence is sufficient to establish a PED violation.

This isn't surprising, nor is it unfair. In both civil and criminal cases, juries are instructed that there are two types of evidence: direct evidence (like a failed drug test) and circumstantial evidence (like receipts, text messages and other corroborating evidence). Both types of evidence (alone or in combination) can be used to establish liability or guilt. In the eyes of the law, circumstantial evidence is just as good as direct evidence. The Joint Drug Agreement adopts this understanding.

5) Do the suspended players have due process and, if so, what is it?

Players suspended by MLB, whether for brawling or plunking or taking PEDs, have the right to appeal their suspension in an arbitration process. This process is created by the Joint Drug Agreement and MLB's "Basic Agreement" with the players' union (the main document, of sorts, governing labor relations in baseball). The player's appeal is presented to a three-person arbitration panel: one arbitrator is appointed by MLB, one is appointed by the players' union, and one is appointed by the mutual consent of both MLB and the union. While there are three arbitrators, the third "neutral" arbitrator often ends up deciding the appeal when the other two split their votes.

A suspended player has three days from the announcement of his suspension to elect whether to appeal. If he so elects, the appeal of a Section 7(G)(2) "just cause" suspension generally takes approximately 45 days (the hearing must be opened no later than 20 days after the appeal and a decision must be rendered with 25 days). An appeal under the Basic Agreement can take longer under Article XI(B) can be longer. Both MLB and the player have the opportunity to present their cases to the panel. The entire process can take many weeks, as evidenced by Ryan Braun's 2012 appeal of his suspension arising from his failed drug test.

While an appeal is pending, the player has the right to continue playing. The suspension is stayed. If the appeal is denied and the suspension upheld, the player then begins serving the suspension several weeks after it was originally announced.

6) Thirteen of the 14 suspended players aren't appealing. Why not?

In most cases, these players aren't appealing because it's not in their interests to do so. Nelson Cruz and Jhonny Peralta, for example, are free agents at the end of the 2013 season. Appealing their suspensions would allow them to play now, but they run the risk that the suspensions are upheld, and that they would have to serve them at the beginning of the 2014 season. A player serving a 50-game suspension would be less lucrative to a club pursuing that player in free agency. By serving their suspensions now, Cruz and Peralta are able to get them out of the way, and enter free agency able to play on Opening Day 2014.

In the case of suspended Yankee Francisco Cervelli, serving his suspension now make sense because he's on the disabled list. Missed games count toward his suspension, even though he can't play. As for Everth Cabrera, Antonio Bastardo and the various minor leaguers suspended yesterday, serving their suspensions right away seems to be part of the agreement to avoid a potentially heavier punishment, and the players' union didn't appear too receptive to fighting on their behalf.

7) Nearly all of the players received the standard 50-game suspension for using PEDs, but Ryan Braun received 65 games. What gives?

Braun received a 65-game suspension after MLB found Braun in violation of both the Joint Drug Agreement and the Basic Agreement, namely, by engaging in "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," as forbidden by Article XII(B) of the Basic Agreement. MLB therefore is using the the Basic Agreement as a basis to impose a stiffer penalty than a first-time offense under the Joint Drug Agreement. This is somewhat uncharted water, in that there is little precedent for applying PED-related suspensions under this clause, but MLB was successful in getting Braun to agree to it.

8) MLB slapped Alex Rodriguez with a 211-game suspension. How the heck can they do that?

Whether MLB's massive suspension of A-Rod will stick is an open question. Essentially, MLB followed the same rubric that it used with Ryan Braun: a suspension for violation of the Joint Drug Agreement, and a suspension for violating the Basic Agreement. According to MLB's press release, Rodriguez received such a severe suspension because of his use of PEDs "over the course of multiple years," and because he "engag[ed] in a course of conduct intended to obstruct and frustrate the Office of the Commissioner's investigation."

Once Rodriguez appeals, the arbitrators will need to decide two issues. First, the arbitrators must decide whether MLB has the authority to issue a suspension of such severity under the "just cause" and "best interests" clauses, or whether the comparatively lesser penalties set forth in the Joint Drug Agreement limit the Commissioner's authority to ignore those penalties and impose stiffer penalties of his own. If MLB has this power, then the arbitrators must decide whether the evidence offered by MLB is sufficient to warrant the suspension under the Joint Drug Agreement and/or the Basic Agreement. Depending on the answers to these questions, the arbitrator could sustain, nullify or reduce A-Rod's suspension. In fact, A-Rod conceivably could concede liability for a PED offense, but argue that the punishment is too severe.

9) Why not ban A-Rod for life?

MLB has the authority to ban a player for life under Article XII(B)'s "best interests of baseball" provision. This is a broad and arguably vague delegation of power to the Commissioner, one that to my knowledge has never been defined or upheld in a legal challenge. While media reports suggested that MLB might exercise this authority to impose a lifetime ban on A-Rod, Selig wisely decided against it.

First, MLB has agreed with the players' union on the proper degree of punishment for PED offenders. While A-Rod confessed to using PEDs in 2004, he has never tested positive, and so arguably the Biogenesis allegations constitute his first violation of the Joint Drug Agreement. As explained above, that generally carries a 50-game suspension. Banning A-Rod for life would ignore the agreed-upon punishment for a PED offense, even going beyond the 100-game punishment for a second offense.

Second, while MLB has imposed an additional suspension for violation of the Basic Agreement (namely, for obstructing its investigation), a lifetime ban would be unprecedented under these circumstances. A-Rod would challenge the ban in court, which would directly implicate the Commissioner's powers under the "best interests of baseball" clause. Simply put, a court would have to decide whether the Commissioner really has that power. MLB therefore runs a big risk that a court could hold that the Commissioner doesn't have this authority, thereby undermining one of the most important levers of power held by the Commissioner. Banning A-Rod for life puts all the risk on the Commissioner's office, and none on A-Rod. Under these circumstances, what would he have to lose?

Third, MLB appears to have the backing of the players' union when it comes to the suspension of many of the Biogenesis players. By all accounts, most current players want a clean game, and the union represents these players as much as it does the alleged PED offenders. But another reason the union has acquiesced to MLB's punishments is because the procedures of the Joint Drug Agreement and the Basic Agreement have been followed, appeal rights have been maintained, and except for A-Rod, any additional suspension (such as with Braun) has been limited to 15 games.

Banning A-Rod for life would bring the union into the fray against MLB with full force, and understandably so. As it stands, the union intends to push back against A-Rod's 211-game suspension as excessive. The union's position is simple: MLB and the players have agreed on what the punishments should be for PED offenses, and the limits of those punishments. A lifetime ban would ignore those limits. It also creates, from the union's perspective, a dangerous precedent that could be used against other players for lesser offenses in the future. The union privately may find defending A-Rod to be distasteful, but a lifetime ban would raise the stakes and put into play much bigger issues.

From MLB's perspective, A-Rod isn't worth the fight. The dispute over A-Rod's current suspension is limited in scope and doesn't implicate the Commissioner's broader powers to act in the best interests of baseball. As much as interested third parties (like the Yankees) would love for A-Rod to be banned permanently, MLB is rightly taking the long view to preserve its authority.

10) Forget all this Biogenesis stuff and address the real issue: Can we sue the Rockies for intentional infliction of emotional distress?

No.

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