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June 13, 2013

In A Pickle

What the Arbitrators Will Hear

by Jason Wojciechowski

When news broke on June 4th that MLB would be seeking to suspend a slew of players connected to the Biogenesis clinic in Miami, I was on an airplane back from Pittsburgh, where I was attending a labor lawyers conference. So, a week later than you might have hoped to have it, what I'd like to do, building on the ESPN report linked above as well as Maury Brown's very good piece discussing some of the financial and personal issues raised by the case, is lay out the key contractual provisions and some of the quasi-legal doctrines surrounding this case to provide some idea of the groundwork that the massive structure of strategy and politics covered by Maury, the ESPN team of T.J. Quinn, Pedro Gomez, and Mike Fish, and others is built on.

I'm not a reporter. I don't have inside knowledge about the union, individual player, or management strategies and tactics. What I have are the two basic documents, the collective bargaining agreement (technically called the Basic Agreement, but I'll call it the "CBA") and the joint drug agreement ("Major League Baseball's Joint Drug Prevention and Treatment Program"—that's a mouthful, so let's just say "JDA"), read with a labor lawyer's eye. (To inform you of my biases: I am, specifically, a union-side labor lawyer, and not by accident.)

The first issue is raised by the apparent fact that MLB is not pursuing this group of players for testing positive but for some other violation. Whence does MLB's power to suspend players without such a test emanate? Section 2 of the JDA:

All Players shall be prohibited from using, possessing, selling, facilitating the sale of, distributing, or facilitating the distribution of any . . . Performance Enhancing Substance . . . .

(Emphasis supplied.) "Performance Enhancing Substance" is defined in section 2(B) of the JDA. I don't know enough about chemistry to discuss the intimidating words that appear in that definition, so let's assume that Biogenesis dealt in plainly banned substances so as to leave that issue to one side.

The easiest case for MLB to make if Tony Bosch, the founder of Biogenesis, does cooperate as Quinn, Gomez and Fish reported he would is if Player X walked into Bosch's office with a personal check and Bosch handed back a box chock full o' drugs. This is clearly possession. The case would be harder to prove if Bosch and the players interposed intermediaries, did their business by the mails, or otherwise masked their transactions, but that does not change the basic contractual point: a player with drugs in his hands can be suspended under the JDA just the same as a player with drugs in his urine.

Those of a pedantic mind will note that the quoted excerpt above merely bans the possession (etc.) of drugs but does not set out the penalty for violation. Section 7(A) of the JDA provides:

A Player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the use or possession of a Performance Enhancing Substance, will be subject to the discipline set forth below.

(Emphasis again mine.) What is "set forth below" is the three-tiered progressive discipline that we're all familiar with: 50 games, then 100, then a permanent ban. (Less familiar, at least to me: players can apply for discretionary reinstatement that can be granted after at least two years of the ban has passed.) Thus, Section 2 of the JDA is enforced via Section 7(A).

Facts presently unknown (to us) may give rise to other claims by MLB. If Bosch provides information that he sold drugs to Player X and X then sold or distributed those drugs to others, then Section 7(F) provides even harsher penalties: 80 to 100 games for the first offense and permanent ban (with, again, discretionary reinstatement) after the second. "Distribution," as long as we're on the subject, does not appear to be a defined term in the JDA. While "distribution" might conjure up ideas of widespreadness, networks, multitude, here are two relevant legal definitions:

The term "distribute" means to deliver (other than by administering or dispensing) a controlled substance or a listed chemical.

The terms "deliver" or "delivery" mean the actual, constructive, or attempted transfer of a controlled substance or a listed chemical . . . .

Those are 21 U.S.C. ¬ß 802(11) and (8) respectively, which are part of the federal food and drug code. They would seem, thus, highly relevant to the definition of "distribution" in the JDA (though not controlling), and neither definition has any numerosity requirement. In theory, a player could get banged under the JDA if he gave a friend on his team a tiny trial portion of his own drug shipment. (Though it's worth noting that, as I understand the way performance enhancing drugs work, a trial portion wouldn't make any sense—you don't get a lot of muscles from a lot of drugs and a little muscles from a little drugs. There's an entire course of treatment and administration. Breaking off a piece and giving it to a buddy might make more sense in the world of stimulants, and I'd add that the penalties for stimulants, including for distributing them, are lower than for the performance enhancing drugs. It does not appear that stimulants are actually at issue in the Biogenesis case.)

The JDA at Section 7(G)(2) also contains a catch-all permitting discipline for any violation not mentioned by the specific discipline provisions. This catch-all is where the more troubling layer of discipline comes in. Quinn, Gomez, and Fish reported that

One source familiar with the case said the commissioner's office might seek 100-game suspensions for Rodriguez, Braun and other players, the penalty for a second doping offense. The argument, the source said, is the players' connection to Bosch constitutes one offense, and previous statements to MLB officials denying any such connection or the use of PEDs constitute another.

Put aside for a second the idea that "connection to Bosch" is actually an offense under the JDA—that, I'd assume, is just shorthand for the possession charge that arises naturally from being connected to someone whose job is to sell drugs. The real issue here is "statements to MLB officials denying any such connection." The JDA doesn't contain a provision regarding lying. The best argument I can see using the language of the JDA is that in lying, the players facilitated the sale or distribution of drugs. That is, had they not lied, MLB would have been able to laser in on Bosch sooner, suing him for tortious interference with contract, reporting him to the feds, or doing whatever else it is MLB wants to do to shut down a drug distributor. Then, had MLB taken those actions, Bosch's drug distribution and sale would have been closed down earlier than they were. The delay in the closing of Biogenesis thereby represents additional drug distribution, which delay was caused by the lying. Thus: facilitation.

At the risk of setting up a strawman and then lighting it on fire, this argument feels like a stretch. Isn't any interaction with a seller of drugs facilitating distribution? If you patronize a business, you are contributing to that business's profits and thereby assisting in the continued existence of that business. Arguably, then, anyone who tests positive for drugs could be disciplined for facilitation of distribution because they acquired those drugs, thus rendering pointless the separate of facilitation and use/possession as concepts. Lying-as-facilitation does not strike me as a viable theory.

As I noted above, I have no inside knowledge, so I don't actually know whether this will be MLB's argument, or whether they've worked up something I haven't thought of with respect to lying. All the above represents is the best I've got from the language of the JDA. And the language does matter—that's the thing about a contract. The words on the page govern the relationship. Words can never cover all cases, as anyone with linguistic capacity in any tongue knows, but behavior pursuant to a contract cannot be completely unmoored from the words. If MLB wanted to be able to suspend pursuant to the JDA for lying to investigators, then they should have negotiated a clause with the union about lying to investigators.

There is, under the CBA, a provision for discipline "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." Lying to investigators is unlikely to violate any laws, but it is at least arguable that not assisting investigators in bringing about the downfall of a major drug distributor is "materially detrimental" to MLB.

This, though, is the CBA, not the JDA, and the CBA does not have standard suspension lengths. Where the JDA imposes a particular number of games for particular violations, the CBA leaves the type of discipline open to the team or MLB to determine. That determination is not without limits, though, as all discipline under the CBA must be for "just cause." Those are only words, but they are massively important words in the world of labor contracts. The entirety of the law around just cause isn't worth a deep dive here, but the most important element for our purposes is that discipline is not for just cause if the degree of discipline is not reasonably related to the seriousness of the offense.

The importance is this: under the JDA, the contract itself controls the suspension. The arbitrator cannot find that it was too harsh—the only question is whether the employee violated the rule. Under the CBA, the arbitrator is not limited to deciding whether the offense actually occurred, but whether the punishment fits the crime. If MLB attempts to justify what amounts to a 50-game suspension (that is: 100 games total, 50 for the JDA violation and 50 for the CBA) on a "materially detrimental" theory, then, not only does it leave itself open to the arbitrator holding that lying to an investigator is not in fact materially detrimental but also to a finding that MLB came down too hard on the player for doing so. The lack of precedent will make it difficult for the arbitrator to demand any particular length, but making a player give up nearly a third of his salary, the equivalent of a four-month suspension for any of us shlubs in the real world, may be viewed as rather harsh. An overturned or reduced suspension on either of these grounds could have negative public-relations consequences for MLB, though that is about the extent of it. An arbitrator isn't going to order MLB to pay attorneys' fees or issue sanctions for bad behavior.

In relation to the potential 100-game suspension, I want to expand on something Maury wrote:

If the league were seeking two suspensions tied to the Bosch testimony, the league would have to seek a first suspension for a violation (50 games), then a second suspension for denying PED use to league investigators while the first suspension was under appeal (100 games). If that were the case, the players would get not 100, but 150 games in total suspensions.

Now, as a minor point of disagreement, I don't believe that there is anything in the JDA requiring that a player actually be suspended in order for a first offense to have that counted as a first offense. The entire language of the relevant part states:

Second violation: 100-game suspension;

By the strict language, then, MLB might be able to, rather than stack the suspensions as Maury notes, simply jump to the second level of discipline by virtue of the player having committed two violations.

However, the concept of progressive discipline is that the employee is put on notice that his behavior is unacceptable by escalating discipline. Jumping straight to a higher level without first providing that notice by disciplining the employee at the lower level violates that notion of progression.

Perhaps more importantly, though, there is a contractual provision, section 7(L), dealing with multiplicity:

. . . a Player will not be disciplined for a second or subsequent violation involving a Prohibited Substance that occurred prior to the time that the Player received actual notice of his first positive test result or non-analytical positive for the same Prohibited Substance . . . .

An example: Player X pees in a cup. Three days later, Player X pees in another cup. Three days after that, the first cup comes back positive for Substance S. Three more days after that, the second cup comes back positive for the same Substance. Player X cannot by the terms of section 7(L) be bumped to the two-violation level because he had not yet received notice of the first violation when he committed the second violation.

The question is how far this goes for "non-analytical" results, as we have in this case. See if the following analogous example works for you: Suppose for a second that lying is a straightforward violation of the JDA. Player X lies about buying Substance S from Tony Bosch. Three days later, Player X is caught holding Substance S. Three days after that, Player X is given a notice of suspension for lying. Three days after that, Player X is given a notice of suspension for possession. I've essentially substituted "lying" and "possession" for "failed test" and "failed test." Player X had no notice of the first violation when he committed the second and thus cannot be considered to have violated twice.

The different-substances rule for double-violations would seem to doom lying+possession as a valid double-violation. The way that MLB would prove the lying is with the possession, but the lies were necessarily about the same substance as the possession. This would seem to me to point to the possibility that, if MLB wants to pursue suspensions for lying, they will be doing it under the CBA rubric rather than the JDA.

I think the "where does discipline come from" question is the most important one to understand (and about which to be skeptical), but there are other aspects of the case raised by the agreements and the reporting.

First, we talk about "arbitration" a lot, but it's worth mentioning exactly what the hell arbitration is in case you only have the barest of ideas. Essentially, an arbitration proceeding is like mini-court or quasi-court. If you've seen court on TV, imagine that, but in a conference room and with the "judge" (the arbitrator) not sitting on a bench ten feet above everybody else. There's no jury, which is a key idea, because many of the rules of decorum and evidence that you associate with court arise out of a concern for prejudicing the jury of laypeople with material not properly before them. Arbitrators, by contrast, are overwhelmingly lawyers. (I have heard of a few who are not.) They are perfectly capable of weighing the value of any given evidence for whatever it is worth. Thus, while you can't bring in hearsay in court, arbitrators are typically perfectly willing to accept it, often while noting that they understand that it is hearsay and they'll give it the appropriate weight accordingly.

This liberal attitude toward evidence is actually mandated by an Appendix to the CBA setting out the arbitration rules of procedure:

The [arbitrator] shall be the judge of the relevancy and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary.

Objections, then, ought to be few and far between, and the theatricality, the playing-to-the-jury aspect of essentially accusing the other side of grievously wronging you by attempting to introduce evidence it should not, is more or less absent. Every arbitrator runs his hearings in a different way, with varying levels of formality, but the idea to keep in mind if you like having a mental picture of what's going on when Player Y appeals a suspension, then picture court (the witness is sworn in, the lawyer questions the witness, the other lawyer cross-examines, the first lawyer can re-question, documents are introduced as needed, etc. etc.) but without so much fuss.

Second, the burden of proof will lie with MLB to prove that players actually did violate the JDA (or, as noted above, that discipline was for just cause pursuant to the CBA). This makes logical sense in that giving the player the burden of proving a negative (that he did not violate the JDA) would be silly. The burden is not a criminal-law-type "beyond a reasonable doubt" standard. In fact, there is not really a standard at all. It boils down to: Make the arbitrator believe you.

Third, players are permitted "discovery" under article XII(D) of the CBA when they are disciplined. That is, they are entitled to all documents or other evidence gathered by MLB in its investigation. I don't know whether this has any bearing on the possibility of embarrassing material in MLB's files being provided to the union in discovery before an arbitration in this case, but it's at least worth keeping in the back of our minds.

Fourth, and finally, some serious nitty-gritty for the truly hardcore: timelines. MLB is currently investigating. It's possible, given that all of this is supposed to be taking place behind a curtain of silence, that they have finished their investigation and already sent notices of suspension to a group of players and the appeal machinery is chugging along as we speak. But let's pretend for now that we will find out via the tireless work of investigative reporters the second MLB actually moves forward with discipline.

In addition to the issues noted above regarding multiplicity with respect to suspensions where there is no positive test, the timelines for discipline and appeal give a strong impression that the bargaining parties had the testing regime in mind far more than suspensions for other conduct. There are two sets of procedures for appeals: one for positive test results and one for the catch-all provision of section 7(G)(2). As noted above, however, possession of drugs is a suspendable offense independently under section 7(A)—the commissioner does not need to rely on his fallback section 7(G)(2) power. With no positive test and without needing to proceed under 7(G)(2), which suspension and appeal procedure is to be used?

It's probably the safest assumption that the 7(G)(2) rules will be followed because the suspensions for possession are most analogous to suspensions for an unenumerated violation. Or, rather, that they are sufficiently not analogous to positive tests to warrant using the 7(G)(2) procedure rather than the positive-test one.

On that assumption: MLB will give notice of the suspension to the player and the union. The player will have three days to file a grievance, which grievance puts a hold on enforcement of the suspension. The normal grievance procedure, as in most labor contracts, contains a variety of steps designed to reduce the costs on both sides by forcing the parties to meet and discuss the grievance and figure out a way to settle it without having to go to a full-blown hearing. (Arbitrators are not cheap.) Under the JDA, though, a grievance is automatically escalated to arbitration while still mandating that representatives of MLB's labor relations department and representatives of the union meet and discuss settlement at some time between the notice of grievance and the arbitration hearing.

Assuming the grievance is not settled by that meeting (and given the extremely public status of this case and MLB's apparent massive hard-on for enforcement, I think we can assume that these suspensions will be arbitrated), the arbitration hearing commences within 20 days of the notice of grievance. (This is fast.) The arbitrator is encouraged by the JDA to issue an award (i.e. a decision—they are, for reasons unbeknownst to me, called "awards" in arbitrationland) within 25 days of the first day of the hearing. A written decision is supposed to follow within 30 days of the award. The arbitrator is not a party to the JDA or the CBA so the timelines do not bind in any meaningful way, but employers and unions do know which arbitrators are fast and which are slow, and those that are unable to meet requested deadlines may see their client base dry up.

If the suspension is upheld, the player begins serving it immediately (apparently immediately upon the award, not the written decision, though that's not explicit). If not, everybody goes about their business. As we learned from the Ryan Braun situation, the confidentiality rules of the JDA are supposed to require that the entire set of proceedings remain hush-hush and nobody ever find out that a player was even charged if the suspension is not upheld.

One last note: I've been referring throughout this piece to "the arbitrator." As Maury explained in his piece linked above, the CBA permits either a single arbitrator or an arbitration panel where the panel is composed of one union panelist, one MLB panelist, and one panelist chosen by agreement of MLB and the union. In either case, though, the neutral is the important vote. Arbitrator Peter Seitz, for instance, technically cast the deciding vote on the Andy Messersmith/Dave McNally arbitration panel in 1975 that limited the reserve clause, but the other members of the panel were John Gaherin, a longtime labor relations specialist who was MLB's chief negotiator, and Marvin Miller, who, in case you haven't heard, was the executive director of the players union. In other words, whether "the arbitrator" is the impartial person on the panel or the sole arbitrator, calling him or her "the arbitrator" is a fair representation of the reality.

The current neutral, by the way, Fredric Horowitz, is an extremely well-regarded labor arbitrator based out of Southern California. (It's probably worth a disclosure that it's very possible that I will appear before Arbitrator Horowitz at some point in my career, so you might wish to undertake your own investigation regarding whether he is well-regarded rather than take my word for it.)

Finally, to what we might surmise is happening right now between the players in question and the league's investigation. Absent some contractual language, there is no workplace privilege not to cooperate with a disciplinary investigation, even if such cooperation will result in self-incrimination. (Note that in Jeff Passan's story about minor-league players talking in the Biogenesis investigation, he uses the phrase "Under threat of suspension.") The question of whether to cooperate essentially comes down to economic power. In workplaces where the employees are viewed as fungible, the power lies with the employer—if the employee refuses to roll on his buddy or talk about his own alleged wrongdoing, the employer can discipline him, potentially up to firing him and replacing him with someone else. In baseball, Ryan Braun is not fungible. As much disciplinary leverage as the league has over Braun (since he won't get paid during a suspension), Braun has "who else are Brewers fans paying to see?" leverage the other way. I'm hesitant to take guesses, but if I had to guess, I'd say that major-league players are not being entirely helpful to MLB's investigation at the moment.

Well! Did I miss anything? Is your reading of the contracts at odds with mine? Other theories about how MLB can suspend players for lying?

Jason Wojciechowski is an author of Baseball Prospectus. 
Click here to see Jason's other articles. You can contact Jason by clicking here

Related Content:  Steroids,  Legal Issues

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