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Monday, January 13, 2014

A-Rod sues MLB and union to get ban overturned; arbitrator’s decision attached

Here’s the filing.

Alex Rodriguez has turned on his own union.

In an effort to nullify the 162-game suspension he received on Saturday for his alleged involvement with Biogenesis, the Yankees’ beleaguered superstar filed a new lawsuit in Manhattan federal court Monday that names both Major League Baseball (and commissioner Bud Selig) and the MLB Players Association as defendants…

The lawsuit details several complaints in which Team A-Rod alleges the union, long viewed as one of the most effective and powerful unions in the United States, declined to intervene on A-Rod’s behalf. Among them are the failure to stop MLB’s lawsuit against Anthony Bosch, which led to Bosch cooperating with MLB; a refusal to let Rodriguez select his own representative (instead of the PA’s general counsel David Prouty) to the three-person arbitration panel; a lack of effort to halt media leaks about A-Rod’s case and public comments made by Michael Weiner, the former executive director of the Players Association who died on Nov. 21, that implied Rodriguez’s guilt in the matter…

The suit also alleges myriad transgressions by Fredric Horowitz, the independent arbitrator, during the 12-day hearing.

The District Attorney Posted: January 13, 2014 at 06:03 PM | 78 comment(s) Login to Bookmark
  Tags: alex rodriguez, legal, ped, yankees

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   1. Best Regards, President of Comfort, Esq. Posted: January 13, 2014 at 06:39 PM (#4638107)
Good luck with that.
   2. Ray (RDP) Posted: January 13, 2014 at 06:46 PM (#4638118)
First thought from skimming Horowitz's ruling:

If ARod is guilty, then MLB's testing program sucks. 12 times between October 2010 and August 2013 ARod tested negative.
   3. Publius Publicola Posted: January 13, 2014 at 06:48 PM (#4638121)
I think that's the basis of A-Rods defense- "But I tested negative 12 times!".
   4. Ray (RDP) Posted: January 13, 2014 at 07:03 PM (#4638138)
Selig's Notice of Discipline basically stated:

* 211 games based on 7G2 violations (JDA) and XIIB violations (CBA).

Surprisingly, Selig does not separate out how many games were for use/possession, and how many were for obstruction, because Selig was trying to have it both ways as I'll explain below.

For 7G2 Selig cited:
- multiple use/possession/substances/quantity/variety/frequency
- lengthy time of use (2010-2012)
- you denied guilt
- efforts to conceal use
- you didn't answer questions and thus we had no defense for you
- suspicion that you lied to us about 2009 Anthony G. doctor

(Selig's letter is a bit confusing but I _think_ all of the above fell under 7G2.)

For XIIB Selig cited:
- attempt to cover up
- obstruction

Selig also said that the union changed its mind and now says MLB can't suspend ARod under 7G2 for all of this stuff - it has to be 7A. So Selig then threatened, that if the union was upheld on this, he would convert the suspension to 7A3 (use/possession) and ban ARod permanently.

---

Completely ridiculous IMO for Selig to not give a breakdown/separation, to try to have it both ways, to suspend him for multiple offenses before he's been disciplined once, to add games for denying guilt, and to threaten to permanently ban him if 7A was the section they were going under.
   5. The District Attorney Posted: January 13, 2014 at 07:13 PM (#4638147)
p. 29 of the arbitrator's decision cites a 2008 Neifi Perez case as precedent that "separate uses are subject to separate discipline."

Even though the decision acknowledges that the 50 games/100 games/lifetime setup doesn't apply to "continued use or possession of multiple Prohibited Substances over a prolonged period of time" (p. 28), it says that it "provides a useful guidepost in evaluating whether the suspension of Rodriguez for the remainder of the 2013 season and the 2014 season is supported by just cause." By this logic, since A-Rod used three different drugs (IGF-1, testosterone, and HGH), and each would be a 50-game first offense, something around 150 games is appropriate.

It also basically argues that A-Rod is worse than other lengthy suspensions (Steve Howe 119 days, Guillermo Mota 100 games, Jason Grimsley 50 games in the only prior "non-analytic positive" case), but on the other hand no one has yet been suspended for more than a season, so 162 games checks out. (I didn't, on a very quick skim, see any mention of Melky Cabrera, which is interesting.)

The decision briefly writes off allegations of misconduct by MLB during the investigation on p. 32-33; won't summarize here, but worth reading.
   6. Srul Itza Posted: January 13, 2014 at 07:16 PM (#4638151)
If the Notice of Discipline was the basis for the suspension being grieved, then, given how vague and ambiguous it appears, A-Rod was on reasonably firm ground to ask to have the Commissioner explain it under oath at the arbitration.

Of course, it was drafted by lawyers and just signed off by Selig, who probably had minimal actual input to the drafting, but still, the worse the Notice appears, the better the case for requiring Selig to testify.
   7. fra paolo Posted: January 13, 2014 at 07:20 PM (#4638154)
The record establishes that cases such as this, involving continuous and prolonged use or possession of multipole substances (as opposed, e.g., to a single positive test) were intended to be handled under Section 7.G.2 rather than section 7.A....[MLB and the MLBPA] agree, however, that for violations of the type presented by this case, the Commissioner is not limited to the disciplinary schedule set forth in Section 7.A [of the JDA], but rather can fashion an appropriate penalty, provided that such penalty is supported by principles of just cause.
That's from the arbitrator's ruling, p.28. So the MLBPA basically agrees that the JDA is a framework around which the Commissioner has discretion to impose whatever seems to be warranted.
   8. JL Posted: January 13, 2014 at 07:23 PM (#4638157)
So the arbitrator's decision seems to say that Bosch testified. If so, why would ARod not have the change to cross him? That seems like a big deal to me, but perhaps there is a reasoning that I am missing (like they used a deposition instead of live testimony).
   9. Publius Publicola Posted: January 13, 2014 at 07:27 PM (#4638161)
If so, why would ARod not have the change to cross him?


He needs it for parking his chariot.
   10. dlf Posted: January 13, 2014 at 07:27 PM (#4638162)
#8 -- Rodriguez claims that Bosch testified on direct, but on cross he took the 5th in response to many questions.
   11. The District Attorney Posted: January 13, 2014 at 07:30 PM (#4638163)
Calcaterra:
Never mind that the Neifi Perez case did not involve HGH or testosterone, it involved stimulants, which are treated quite differently. Never mind that other Biogenesis players — specifically Bartolo Colon and Melky Cabrera — were not given multiple levels of discipline because, according to baseball, they already did their time, as it were.  This seems remarkably shaky to me. It is a new way of approaching drug discipline that just so happens to achieve Major League Baseball’s desired result of a lengthy suspension.

Major League Baseball actually argued for a lifetime ban here, saying that if A-Rod had three distinct offenses he’d get a 50, a 100 and a lifetime stacked on top of each other. That actually makes more sense to me. After all, if a player who got a 50 game test suspension last year tested positive for a different substance tomorrow, he’d get 100 games. There would not a be a 50 game suspension because it is a different substance, which is what the arbitrator is basically doing here. In essence, the arbitrator is going lighter on A-Rod than the logic he actually subscribes to would have him do. It would at least be intellectually consistent for him to ban Rodriguez for life.  The arbitrator was obviously loathe to do that. But if the logic train he followed drove him off a cliff, maybe he shouldn’t have followed that logic train in the first place. Maybe he shouldn’t have tried to invent his own standard...

I believe, ultimately, that Major League Baseball will win the lawsuit A-Rod filed today as his best arguments are one of interpretation of the Joint Drug Agreement, and that is not enough to cause a court to overturn an arbitration. But I do believe that the arbitrator’s interpretation of the JDA was unsound and that the result — suspending Alex Rodriguez for a long time — was the tail that wagged the dog of his legal interpretation. That’s what Major League Baseball wanted. It’s what the arbitrator felt he should get. And he found a way to make it happen.

A way I do not believe anyone else ever considered before. Or, for that matter, should have.
   12. JL Posted: January 13, 2014 at 07:30 PM (#4638164)
#8 -- Rodriguez claims that Bosch testified on direct, but on cross he took the 5th in response to many questions.


Thanks. I missed that in my quick skim. Stills seems problematic. Bosch's testimony would seem to open him up to some criminal issues. So how could he be okay on direct, but cross causes a problem? Seems like there was a waiver, but of course the devil is in the details of the testimony and questions.
   13. Publius Publicola Posted: January 13, 2014 at 07:35 PM (#4638167)
Bosch's testimony would seem to open him up to some criminal issues.


Doesn't he already have criminal issues? He got busted by the feds.
   14. Johnny Sycophant-Laden Fora Posted: January 13, 2014 at 07:41 PM (#4638171)
The arbitrator basically held that you stack penalties, the 50/100/life penalties applies solely to positive tests for the SAME SUBSTANCE.

He disregards reports of MLB's misconduct for essentially 3 reasons-
1: The conduct AROD complains about is the same type of conduct AROD engaged in
2: MLB's conduct was after AROD's use of PEDs and did not affect such use
3: The witness who claimed that MLB threatened him was not credible

The arbitrator also dismisses evidence of payment to Bosch by the MLB as being meaningless since payment of some of Bosch's costs in complying with the subpoena etc was reasonable.

AROD's gonna lose of course because it is too damn hard to overturn an arbitrator's decision, but the MLBPA better be damned leery of this guy going forward- he reads the CBA as giving a hell of a lot of discretion to the Commish, a hell of a lot of discretion- If Miller or Fehre were still running it I think their letter canning him would have been issued even faster than AROD's lawyers managed to get this complaint filed
   15. Ray (RDP) Posted: January 13, 2014 at 07:53 PM (#4638177)
My summary of Horowitz's ruling:

1. He found Bosch credible. And as I guessed part of the reason was that Bosch had corroboration (notebooks, texts). Horowitz made reasonable/logical inferences, in his view, of the physical evidence.

2. He did not take any action about the confidentiality leaks from either side.

3. ARod argued:
(a) I should get 50 games max in accordance with 7A of the JDA and because all of the other BioG players got 50 games;
(b) any suspension should be reduced or eliminated due to MLB's misconduct;
(c) no penalty is warranted for "obstruction."

All of these arguments made by ARod fell on deaf Horowitz ears. Horowitz completely signed on to Bosch and did not believe ARod in any way.

4. Horowitz ruled:
(a) The other BioG players' suspensions were non-precedential and didn't factor in in any way.
(b) 7G2 warrants suspension on the basis of multiple uses/substances whereas 7A only speaks to one use/substance.
(c) But 7A says "a" PES so the discipline can be stacked for each first use/possession of a different PES.
(d) The penalty must be supported by just cause which is broader than 7A.
(e) Yes, 7L requires notice before a second discipline, but 7L speaks to THE SAME substance but here ARod used DIFFERENT substances.
(f) There is no need to render a judgment on MLB's argument that 3 first uses/substances under 7A leads straight to a permanent suspension.
(g) Because it is reasonable to take each of ARod's 3 substances and view each on its own as 1 violation per substance and give 50 games for each.
(h) So 50x3 would be 150 games right there.
(i) And I can tack on 12 games for obstruction.

(I note that (h) and (i) seem to be what Horowitz based his ruling on but he doesn't explicitly say that.)

(j) But I'll cap the suspension at one season max because no MLB player has been suspended for longer than that.
(k) MLB did nothing I find improper as relates to this and I won't reduce the suspension because of that, and, anyway, ARod did bad stuff too.

-------------

As I said, I think ARod has a good argument that Horowitz overstepped in basically stacking 3 first substances to get to 150 games, but that is not to say that ARod has a good chance to actually WIN.

Horowitz seems to have not been swayed that parts of the JDA (such as the notice of 7L and also the part that takes the longer suspension when two substances are at play rather than stacking the suspensions), while not directly on point, seem to point closer to 50 games max and away from stacking first penalties. And again, the nature of PEDs is that you don't just use them one single time and then never again so the fact that ARod was using for years shouldn't be found egregious with respect to the agreement. And few players just use one substance; again, that's the nature of this.

Horowitz read the agreement very narrowly, as 50 games for a first offense if that first offense is one incident of use/possession and one substance. That's a very strict reading.

So now basically MLB can stack penalties for first uses if there are multiple substances, and can stack for multiple uses, which really runs counter to the 50-100-permanent structure that the agreement seems to set out. MLB can exact severe penalties on players who have not yet been disciplined. And if you deny guilt or try to prevent MLB from finding out then they can get you under the CBA for obstruction (despite the fact that even when you are caught trying to "substitute, dilute, mask, or adulterate a specimen or in any other manner alter a test" under 3F3 the punishment is simply that you are deemed to have tested positive), although Horowitz didn't really say how much they could get you on and it seems that obstruction was 12 games here but more importantly it seems that MLB can just toss a bunch of things into their Notice of Discipline (multiple substances, multiple uses, prolonged use, obstruction, denial of guilt, etc etc etc) and get straight to a 1 year suspension based on the totality of it all.

And MLB can investigate players using all of the sleaze tactics employed here and have its hands remain clean.

This is very bad for the players, and I don't think it's what the union had in mind at all when drafting this drug agreement. MLB now has a serious hammer. And who's to say it will stop at 1 year suspensions. They can reasonably argue that players can be permanently suspended in one fell swoop.

This is satisfactory to the players? To the union? How much power yielded to MLB is too much power?
   16. Johnny Sycophant-Laden Fora Posted: January 13, 2014 at 07:59 PM (#4638180)
#8 -- Rodriguez claims that Bosch testified on direct, but on cross he took the 5th in response to many questions.

Thanks. I missed that in my quick skim. Stills seems problematic.


happens in Civil Cases, if it's a jury case the judge will tell the jury that they can draw a "negative inference" against the witness taking the 5th...

It also depends upon what questions Bosch took the on, if Tacopina asked Bosch, "When did you stop beating your wife" and Bosch took the 5th, well what does that have to do with AROD's PED use?

This goes to AROD's problem in general- there is almost no way in hell a court is going to disturb an arbitrator's ruling that A" was a credible witness and "B was not.
   17. Ray (RDP) Posted: January 13, 2014 at 08:01 PM (#4638183)
It also basically argues that A-Rod is worse than other lengthy suspensions (Steve Howe 119 days, Guillermo Mota 100 games, Jason Grimsley 50 games in the only prior "non-analytic positive" case), but on the other hand no one has yet been suspended for more than a season, so 162 games checks out. (I didn't, on a very quick skim, see any mention of Melky Cabrera, which is interesting.)


Right, Melky is not mentioned.

Nor is the fact, as I say above, that even when you are caught monkeying around with your test the penalty for that PER THE AGREEMENT is merely that you are deemed to have tested positive.
   18. Ray (RDP) Posted: January 13, 2014 at 08:03 PM (#4638186)
That's from the arbitrator's ruling, p.28. So the MLBPA basically agrees that the JDA is a framework around which the Commissioner has discretion to impose whatever seems to be warranted.


Right, that's what it seems like to me.
   19. Johnny Sycophant-Laden Fora Posted: January 13, 2014 at 08:04 PM (#4638187)
This is very bad for the players, and I don't think it's what the union had in mind at all when drafting this drug agreement. MLB now has a serious hammer. And who's to say it will stop at 1 year suspensions. They can reasonably argue that players can be permanently suspended in one fell swoop.

This is satisfactory to the players? To the union? How much power yielded to MLB is too much power?


There are players who are just fine with OTHER players being "permanently suspended in one fell swoop."
But like you I don't think they are thinking things through.
   20. Ray (RDP) Posted: January 13, 2014 at 08:05 PM (#4638188)
I ask again: is ARod the only player in the testing era to have been found using more than one substance, on more than one occasion?

That notion seems preposterous to me.

And we know he wasn't the only player to try to prevent the league from disciplining him (Melky).
   21. Publius Publicola Posted: January 13, 2014 at 08:07 PM (#4638191)
I ask again: is ARod the only player in the testing era to have been found using more than one substance, on more than one occasion?

That notion seems preposterous to me.


Manny got suspended twice, but I don't remember what he tested positive for.
   22. Ray (RDP) Posted: January 13, 2014 at 08:08 PM (#4638193)
3: The witness who claimed that MLB threatened him was not credible


Yeah, he is the only witness, apparently, who Horowitz found not credible.

Other than ARod (through his attorneys), of course.
   23. Walt Davis Posted: January 13, 2014 at 08:09 PM (#4638194)
I don't expect that it's legally actionable really (IANAL) but Weiner did do a terrible job with this. In his AS game press conference, he basically agreed it was 7G and that Selig wasn't bound by the penalties of 7A. In a later Q&A, he essentially said that AROD was guilty of at least use/possession, that the MLBPA only objected to the CBA discipline.

At one level, the MLBPA deserves what it's getting. The JDA is a mess as it only adequately addresses the testing program and this type of case was just a trainwreck waiting to happen. Even within the context of testing, there's plenty of fog around the proper handling of the specimens as arose in the Braun case.

I took a peak at the CBA the other day to try to find out what it specifies about MLB's "investigative" powers. I couldn't fine anything other than that clause (XII.D I think) that the player has the right to discovery of all the evidence they've gathered against him. Does the MLBPA really want to give the employer carte blanche to investigate their employees however, whenever and for whatever reason they want?

I won't have time today to read the decision. Some cited above seems to make little sense. The JDA does explicitly address multiple substancces (it doesn't really matter how many naughty substances you used, it mainly just clarifies that if you test positive for stimulants and roids, you get the harsher penalty). But, as I pointed out several times, it's not that clear on multiple use outside of the testing regimen. I agreed with Ray that, in the absence of such clarity, the arbitrator would most likely have to rely on the testing logic -- i.e. this was a single and first-time violation. But I'm not that surprised the arbitrator convinced himself of a path to multiple violations.

No matter how contentious the next CBA negotiations may be, I think the MLBPA has no choice but to insist on a re-written and greatly clarified drug policy and a similar effort on the "best interests" and investigative aspects of the CBA. Or they can roll over.
   24. dlf Posted: January 13, 2014 at 08:09 PM (#4638197)
3. ARod argued:
(a) I should get 50 games max in accordance with 7A of the JDA and because all of the other BioG players got 50 games;


At pg. 27, Horowitz says that MLB, MLBPA, and Rodriguez all agree that 7.G.2 applied and not 7.A. Later, as you note, he points out that the other Biogenesis players were all subject to settlement agreements that expressly contained non-precedential provisions.

Horowitz completely signed on to Bosch and did not believe ARod in any way.


Rodriguez didn't testify; Horowitz couldn't believe or not believe him as there was nothing to believe.

............

My issue with this award is that it doesn't address the simple fact that Rodriguez is being punished more *because* he didn't test positive. I highly doubt that any of the former positive tests warranting discipline were the only time the offending player used or for a single substance.

I think Rodriguez's case was primarily directed to pointing out the (mis)conduct of MLB and denying ever using. But for the latter, he didn't present anything to rebut Bosch's testimony and the former, from Horowitz's decision, seems to be equally matched by Rodriguez's associates actions. I think if he had argued the position that Ray has advocated here, he would have had a much better chance of success.
   25. Rickey! trades in sheep and threats Posted: January 13, 2014 at 08:10 PM (#4638198)
There are players who are just fine with OTHER players being "permanently suspended in one fell swoop."
But like you I don't think they are thinking things through.


There are plenty of MLB players who believe "if you don't do anything wrong, you have nothing to hide." I mean, there are a LOT of GOP/Teaper types in the MLBPA.
   26. dlf Posted: January 13, 2014 at 08:12 PM (#4638202)
Manny got suspended twice, but I don't remember what he tested positive for.


Separate suspensions. Not 50+100 for two substances during the same test. Horowitz's ruling, read closely, would support 100 (50+50) if it were two PES found in the same testing cycle.

(I think Manny's second positive was for a female fertility drug that is supposedly a masking agent.)
   27. Ray (RDP) Posted: January 13, 2014 at 08:21 PM (#4638211)
No matter how contentious the next CBA negotiations may be, I think the MLBPA has no choice but to insist on a re-written and greatly clarified drug policy and a similar effort on the "best interests" and investigative aspects of the CBA. Or they can roll over.


Right. The JDA expires in December 2016, and if the union doesn't insist on a complete rewrite they are fools who deserve what is coming to them. To not insist on a complete rewrite in the face of this decision is tantamount to both union and membership bending over and letting the league have their way with them.

It may not happen now, or in two years, but in due time some years down the road the players will wake up to learn that they've been raked over the coals on this issue, and that their union didn't adequately represent them. What has happened here should be horrifying to any union lawyer. For starters, this was the best agreement they could sign their players onto? It is incredibly ambiguous in key spots and the league has now driven a truck through the gaps and vague provisions. The union's lawyers who were involved in drafting this are flat incompetent.
   28. Johnny Sycophant-Laden Fora Posted: January 13, 2014 at 08:23 PM (#4638212)
Rodriguez didn't testify; Horowitz couldn't believe or not believe him as there was nothing to believe.


Given that this was a civil and not criminal matter not testifying would seem to have been at the least an egregious tactical blunder, of course from reading the decision it looks like it wouldn't have mattered, he would have been deemed not credible.

   29. Johnny Sycophant-Laden Fora Posted: January 13, 2014 at 08:28 PM (#4638216)
It is incredibly ambiguous in key spots and the league has now driven a truck through the gaps and vague provisions.


The more I read the decision, I think the MLBPA absolutely has to can Horowitz, maybe not immediately, they can wait a spell for appearances sake, but they'll get slammed by the same MSM that was basically silent on the MLB canning Days, but they have to get rid of him.
   30. Ray (RDP) Posted: January 13, 2014 at 08:38 PM (#4638229)
Re the incompetency of the union in drafting this agreement. Just take a step back and look at what the fight was over in this case: whether a first offender who was found guilty of using or possessing multiple substances on multiple occasions could be punished for 50 games or significantly more than 50 games.

That extremely basic issue was not hammered out by the union lawyers in advance of signing their membership on to this agreement.

That is stunning.

(Horowitz: "Rodriguez and the MLBPA view 50 games as the maximum suspension allowed by the JDA for a first PES violation." ... "The MLBPA and Rodriguez thus maintain that any penalty for a first offender cannot approach the penalty given Howe, who was a habitual offender.")
   31. Ray (RDP) Posted: January 13, 2014 at 08:40 PM (#4638230)
Yes, they cannot keep Horowitz.

And now for the first time I'll ask what Horowitz's background/experience is. Maybe MLB missed the boat in picking him as well. It would be hard to believe, but, then, this drug agreement is hard to believe.
   32. tshipman Posted: January 13, 2014 at 08:45 PM (#4638233)
The more I read the decision, I think the MLBPA absolutely has to can Horowitz, maybe not immediately, they can wait a spell for appearances sake, but they'll get slammed by the same MSM that was basically silent on the MLB canning Days, but they have to get rid of him.


Better to do it now, get all the bad press out of the way and have done with it.

They can fairly easily say that they were uncomfortable with the way Horowitz applied the JDA, but agree with the end result with A-Rod being suspended. Who knows what ESPN will repeat ad nauseum? Since they still have the MLB contract, probably the MLB spin.
   33. eddieot Posted: January 13, 2014 at 08:49 PM (#4638237)
Horowitz will be fired. No doubt. I'm more interested in Selig, Manfred, etc. getting deposed over investigation tactics. This whole thing may still bite Selig in the ass.
   34. Avoid running at all times.-S. Paige Posted: January 13, 2014 at 08:51 PM (#4638239)
And now for the first time I'll ask what Horowitz's background/experience is.


Reportedly A-Rod is emailing his fellow players that Horowitz is an anti-semitic Cubs fan.
   35. dlf Posted: January 13, 2014 at 08:56 PM (#4638242)
I've just finished a second review of Horowitz's Opinion and Award. Rodriguez will not get it overturned.

The admission of evidence or denial of same is within the discretion of an arbitrator to a *much* greater extent than it is for a federal (or state in any state I'm familiar with) trial level judge. As such, his allegations like those about the foreshortened cross of Bosch or the Blackberry examination won't go anywhere.

Similarly, credibility determinations of an arbitrator under the FLRA are *never* overturned by a reviewing court. So finding Bosch credible, particularly in light of supporting documents, won't get overturned, and as such, the fundamental finding of a violation of the CBA/JDA will stand.

As pointed out by Srul in one of today's threads, an award must take its essence from the CBA. But that too is a very loose standard. And as Ray, Johnny, and Walt state above, the language of the JDA is not very precise about how discipline should be imposed. If Horowitz is factually correct that the parties agree that 7.G and not 7.A applies, Rodriguez's appeal is doomed.
   36. Mike Emeigh Posted: January 13, 2014 at 08:56 PM (#4638243)
Page 24 of the arbitrator's decision covers the exchange of Blackberry messages between ARod and Bosch, which the arbitrator cites as evidence supporting Bosch's interpretation of what he did. Salient points:

1. ARod's team confirmed that the PIN number used by MLB to identify the BBM messages came from devices owned by ARod.
2. MLB's expert testified that there was no evidence of tampering.
3. MLB refused to provide the devices for analysis to ARod's expert.
4. The arbitrator instead offered an opportunity to have the devices evaluated by an independent expert - and ARod's team refused.

It also depends upon what questions Bosch took the (5th) on, if Tacopina asked Bosch, "When did you stop beating your wife" and Bosch took the 5th, well what does that have to do with AROD's PED use?


According to the arbitrator's decision (page 23), the questions on which Bosch claimed his Fifth Amendment rights were about his activities with other players, clients who may be minors (the "H.S." notations in Bosch's notebook), sources of the PES, and finances related to activities not involving ARod. I don't know that those questions are exactly pertinent to ARod's case.

I've said all along that ARod's chances of overturning the arbitrator's decision are very small, and there's nothing in this decision that leads me to think otherwise.

-- MWE
   37. The District Attorney Posted: January 13, 2014 at 08:58 PM (#4638245)
So basically, I see Horowitz throwing up his hands and saying that even though this is not actually a 7A issue, no one seems to have any other ideas about how to determine what a "just" penalty is, so I'm going to go by 7A anyway.

And if this were governed by 7A (which, again, it is not), then 7L would apply, which says:
a Player shall 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
And that language means that you CAN get disciplined for more than one thing simultaneously, if it ISN'T the same substance.

There are so many leaps here. I know it's an arbitrator's job to come up with meanings when things are ambiguous, but, man.

Calcaterra brings up a red herring when he asks why, given his logic, Horowitz didn't ban A-Rod for life. MLB wasn't asking for that, so it wasn't an option. I would certainly think, though, that the logic of this opinion would have compelled a permanent ban, if that was MLB's position. A-Rod got three strikes at once! That's some Bugs Bunny ####!

There is no way IMHO that either MLB or the union intended for so much to hinge upon whether a repeat offender also repeated the same PED. They primarily cared about whether the person was taking drugs to enhance his performance, not which drugs. It's a drug testing program, not a different drug testing program!
   38. Danny Posted: January 13, 2014 at 08:58 PM (#4638246)
The arbitration decision matter-of-factly states that MLB filed its tortious interference action against Bosch as a "tactic" to obtain discovery to help its internal investigation of its players.

On page 32:
Because of the severity of the allegations in the initial Miami New Times report, MLB had a legitimate interest in obtaining accurate information about Bosch's involvement with MLB Players. When Bosch refused to cooperate, MLB resorted to civil action to obtain the information it required. Certainly this tactic and the cooperation agreement later reached convinced Bosch to come clean with MLB about his activities with MLB Players. Resort to the legal system, however, does not amount to coercion.
   39. Mike Emeigh Posted: January 13, 2014 at 09:01 PM (#4638248)
   40. Avoid running at all times.-S. Paige Posted: January 13, 2014 at 09:01 PM (#4638249)
Wait, there are lawyers who visit this site?!
   41. dlf Posted: January 13, 2014 at 09:04 PM (#4638250)
And now for the first time I'll ask what Horowitz's background/experience is.


I don't know him personally, but a number of arbitrators I do know speak highly of him. Full time labor neutral for 25 years. Member of the National Academy of Arbitrators and previously on its Board of Directors. Former attorney representing unions for 9 years (Airline Pilots Assoc.) and management for 5 (HCC Industries' internal HR Director and Corporate Counsel). Grad of UC Berkeley and UC Hastings.
   42. cercopithecus aethiops Posted: January 13, 2014 at 09:10 PM (#4638253)
I think Manny's second positive was for a female fertility drug that is supposedly a masking agent.


As was his first.
   43. Bob Tufts Posted: January 13, 2014 at 09:45 PM (#4638269)
In any major arb case, the losing side always fires the arbitrator in a fit of anger. Seitz was fired immediately after Messermsith/McNally.

I wish Marvin Miller were still alive so he could add some high volume contrarian analysis to this spectacle.
   44. puck Posted: January 13, 2014 at 10:11 PM (#4638281)
I just noticed A-Rod is suing the union, too. Is that normal or are they going to be pissed about that?
   45. Morty Causa Posted: January 13, 2014 at 10:16 PM (#4638284)
Someone needs to write a song that tracks Dylan's Rainy Day Women with the hook "Everybody Must Get Sued".
   46. Roger McDowell spit on me! Posted: January 13, 2014 at 10:50 PM (#4638295)
I just noticed A-Rod is suing the union, too. Is that normal or are they going to be pissed about that?


From Gabe Kapler on Twitter:

Step 1: Sue the MLBPA (the players, your teammates). Step 2: Pack bags to go to Spring Training with those players. #Rational

So yeah, I think a fair share will be pissed.
   47. The District Attorney Posted: January 13, 2014 at 10:58 PM (#4638300)
I think this does illustrate the extra-legal principle that people who hear cases really don't appreciate it when one of the parties storms out of the hearing in a huff.

I hope Tacopina tried very, very hard to explain to A-Rod "you are killing yourself here, get your ass back in there." (Tacopina may not have, though, since I suspect that Tacopina won A-Rod's confidence by reassuring him that he is never wrong and the rest of the world is never right.)
   48. Joey B. Posted: January 13, 2014 at 10:58 PM (#4638301)
Man, I thought that Bonds and Clemens were bad guys, but this lunatic has gone completely around the bend and decided to go full scorched earth. What an out of control rabid dog.
   49. The Yankee Clapper Posted: January 13, 2014 at 11:15 PM (#4638307)
Waded through A-Rod's Complaint & the Arbitration Decision. It's always uphill to overturn an arbitration decision, but I didn't find the reasoning on stacking offenses and simultaneous use of multiple substances as separate offenses to be all that persuasive. The Arbitrator appeared to rather casually dismiss the negative tests without any real scientific analysis. Perhaps A-Rod's attorneys missed the opportunity to establish that the rather extensive PED regime alleged to have been taken would have produced a positive test result, or maybe the tests are worthless. Or maybe A-Rod was paying for placebos - by the reasoning of the decision, that wouldn't seem to matter.
   50. Walt Davis Posted: January 13, 2014 at 11:22 PM (#4638309)
Can somebody explain how you get around 7K?

7K. Multiple Substances

(F'ing cut and paste not working ...)

clause 1. Explicitly refers to category of prohibited substances: "if a single specimen (editor: ugh!) is positive for more than one category of PS, the player shall serve the longer applicable suspenstion only." The three categories are defined as PES, stimulant and drug of abuse. I read that as making it pretty clear that the violation is by category, not by individual substance.

This ruling would seem to be one that MLB might not be that happy with either. If I follow the logic, if you test positive for, say, nandrolone, then you get 50 games. If the next year you test positive for andro, you get 50 games.

Also I didn't think these tests could always identify which exact prohibited substance you took. Am I wrong about that?

Was Mota busted for the same thing twice?

And is the guy really citing Howe? I thought that suspension got overturned.
   51. Ray (RDP) Posted: January 13, 2014 at 11:36 PM (#4638314)
As pointed out by Srul in one of today's threads, an award must take its essence from the CBA. But that too is a very loose standard. And as Ray, Johnny, and Walt state above, the language of the JDA is not very precise about how discipline should be imposed. If Horowitz is factually correct that the parties agree that 7.G and not 7.A applies, Rodriguez's appeal is doomed.


Except that I think the ambiguity as to whether a player in ARod's position (having been found guilty by the league/arbitrator) can be hit with a 50 game ban, or 50/100/permanent, or 50x3 (as Horowitz ultimately seems to have found) actually works in ARod's favor. With a massive penalty such as this, I think a court would listen to a fundamental fairness argument that a player should have clear notice as to what the penalties are ahead of time.
   52. dlf Posted: January 13, 2014 at 11:47 PM (#4638317)
#51 - Fundamental fairness is not a grounds for overturning an arbitration award. An employer can't add more charges - factual allegations or separate contractual sections but can add alternative interpration of CBA provisions in the notice.

#43 - Seitz was fired *before* issuing the Messersmith decision when in closed door sessions he indicated the weakness of MLB's case. The union had to go to court to have a judge find that a side can't unilaterally terminate in the midst of a hearing.
   53. Ray (RDP) Posted: January 13, 2014 at 11:51 PM (#4638320)
Can somebody explain how you get around 7K?


I can't. It's one of the reasons I felt that rather than "stacking" offenses the arbitrator would simply pick the longer suspension and be done with it.
   54. Ray (RDP) Posted: January 13, 2014 at 11:53 PM (#4638322)
#51 - Fundamental fairness is not a grounds for overturning an arbitration award.


Ok, call it "going beyond the boundaries of the JDA."

   55. ptodd Posted: January 13, 2014 at 11:54 PM (#4638323)
Reading the arbitrators report it is clear MLB had nothing besides the criminal drug pusher they bought out. The texts and documents (copies, not originals) were not sufficient since they either lacked Arods name or the name of the PED's, and required Bosch to specify. The so called tampering charges were also based on Bosch's say so, and most involved an "associate" and not Arod himself.

On the subject of PED's, there is no evidence Bosch actually gave Arod PED's since Bosch was not compelled to give up his sources. For all we know Bosch was selling Arod expensive bee sperm, and based on Arods performance from 2010-2012, that's more likely than him getting anything that enhanced his performance.

I think a preliminary injunction gets approved as there seems to be clear evidence of bias. Not allowing Selig to testify on the grounds and breakdown for the 211 games, and we still don't know from the arbitrator who danced around it. Not compelling Bosch to answer Arods questions by threatening to throw out his entire testimony. MLB would have then been forced to push Bosch to answer the questions or be in breach of their agreement. The arbitrators failure to distinguish between Arod and his "associate" is also telling. Also, the early release of his findings so MLB's propaganda piece could be heard at a time that maximized ratings is also suggestive.

The MLBPA's behaviour is consistent with union leadership that has been co-opted by MLB. Players should clean house there. I am horrified that Horowitz has not been fired by the MLBPA, but not surprised. MLB wasted little time before firing the arbitrator who ruled for Braun, and perhaps that is more reason to believe that the arbitrators decision was based on something besides the evidence.
   56. Bob Tufts Posted: January 14, 2014 at 12:05 AM (#4638327)
From Lords of the Realm:

Miller signed the line marked “Assent.” Gaherin signed the line marked “Dissent”—and handed Seitz a letter. “Peter,” Gaherin told Seitz, “I’m sorry, I love you dearly, but you’re out.”
   57. The District Attorney Posted: January 14, 2014 at 12:07 AM (#4638328)
Was Mota busted for the same thing twice?
No, it was different things. Which I suppose answers your question about whether you get the "first-time" penalty every time you fail for a different thing, i.e., you do not. And to be fair, I'm sure MLB and the union did both intend for a second offense to be 100 games, even if the two failures were for different substances. But on the other hand, I don't think that both parties intended for 7L to mean that you could get simultaneous multiple suspensions for one investigation, but only if they're all for different substances!

The whole discussion just draws more attention to the question of why that mention of "the same" substance in 7L exists. Although I think the arbitrator went way overboard with the literal parsing of those two words, they are there, and it's not totally crazy to reason that if they're there, it must mean something. I honestly do wonder why the thing is written that way.
   58. dlf Posted: January 14, 2014 at 12:09 AM (#4638330)
Regarding the 7K issue - in Horowitz's summary of the parties' contentions, there is no mention that either Rodriguez or MLBPA raised it. An arbitrator can't address issues the parties don't timely raise.

Regarding Ray's issue about prior notice of what discipline can be imposed - Rodriguez was given notice that the league was asking for 211 under 7G and a broad statement of the alleged misconduct; the discipline was less than proposed. As such he got proper notice.

For reasons I've listed before, I don't like this Award, but it won't be overturned. Or if overturned, a subsequent reviewing court (ala Garvey) will remind the court of it's very limited role under FLMA.
   59. 'zop sympathizes with the wrong ####### people Posted: January 14, 2014 at 12:13 AM (#4638333)
If #55 is written by an attorney, he should have have his children (and license) taken away, for he is a fantastic idiot. "Clear evidence of bias"? Have fun with that, I bet that goes over real well with an SDNY judge. Maybe they can try the "mommy it's just not fair" argument too.
   60. Obo Posted: January 14, 2014 at 12:15 AM (#4638334)
Miller signed the line marked “Assent.” Gaherin signed the line marked “Dissent”—and handed Seitz a letter. “Peter,” Gaherin told Seitz, “I’m sorry, I love you dearly, but you’re out.”

Also told in Miller's "A Whole Different Ball Game."
   61. The District Attorney Posted: January 14, 2014 at 12:20 AM (#4638337)
Regarding the 7K issue - in Horowitz's summary of the parties' contentions, there is no mention that either Rodriguez or MLBPA raised it. An arbitrator can't address issues the parties don't timely raise.
Considering that Walt is not a lawyer, that seems like an oversight. ;)

Regarding Ray's issue about prior notice of what discipline can be imposed - Rodriguez was given notice that the league was asking for 211 under 7G and a broad statement of the alleged misconduct; the discipline was less than proposed. As such he got proper notice.
That's really unfair¹, though -- both sides agree that this is a 7G case, and we don't have to give you 7A notice because it's a 7G case, but then the decision is entirely based on 7A and not 7G.

¹ Not saying it's "overturnable in court" unfair.

   62. Ray (RDP) Posted: January 14, 2014 at 12:20 AM (#4638338)
Regarding Ray's issue about prior notice of what discipline can be imposed - Rodriguez was given notice that the league was asking for 211 under 7G and a broad statement of the alleged misconduct; the discipline was less than proposed. As such he got proper notice.


No, I mean a reasonable understanding of what penalties he faced under the JDA ahead of time for such basic conduct such as "first offense and multiple substances covering multiple years."

After all, there is the concept of notice in the scheme; for example in 7A: first offense subjects you to 50 games; second offense 100 games; third offense permanent.

And all of a sudden here we are at 162 games on a first offense. And the arbitrator had to interpret an unclear agreement to get there.
   63. Cabbage Posted: January 14, 2014 at 12:38 AM (#4638346)
The interesting part of this litigation will be to see the parties' bargaining strategies if MLB/MLBPA can't get this thing dismissed on the pleadings. Is ARod looking to save some semblance of his reputation, or is he just trying to get his paycheck reinstated?

How many skeletons does MLB have in their closet, and how far can Arod leverage their fears of these skeletons into getting what he wants? At least at this stage, I have to think Arod's strongest chip is the threat of getting Bud in the same room as a court reporter, and getting their hands on MLB's files.

Anyone want to put a line on discovery sanctions?
   64. Walt Davis Posted: January 14, 2014 at 12:47 AM (#4638350)
No, it was different things. Which I suppose answers your question about whether you get the "first-time" penalty every time you fail for a different thing, i.e., you do not. And to be fair, I'm sure MLB and the union did both intend for a second offense to be 100 games, even if the two failures were for different substances. But on the other hand, I don't think that both parties intended for 7L to mean that you could get multiple suspensions for one investigation, but only if they're all for different substances!

I agree that they intended that one PES was as good as another and that you would go 50/100 for nandrolone/andro. But that doesn't seem the logic followed here. (Note, if he was buying the "multiple uses = multiple violation" argument then his logic works in ARod's favor.)

7K and 7L in their ways do muddy the water as you note. 7K is titled "Multiple substances" but, in the text, makes it pretty clear it is addressing "category of prohibited substances" (i.e. drug of abuse vs. stimulant vs. PED). That seems to mean "substance" refers to "category of prohibited substance" or they'd have title the section "Multiple categories of substances". On the other hand, while 7K explicitly talks about "category", 7L does not (as you note), referring to "a PS" and "same PS".

However, reading again, I see that 7K1 also references "the Commissioner's Office will disclose ... the specific substance and the category of PS that resulted in the suspension..."

I can see the logic for why 7K didn't apply -- its purpose is to say that if you tested positive for stimulants and PES in the same test, you get the harsher penalty. I was referencing 7K more because it seemed to imply that the operative notion was the category of prohibited substance, not the specific.

The main purpose of 7L seems to be the "caught me once, you can't catch me a second time until you've notified me" clause but possibly it was also meant to keep players from using one PES, pissing, immediately switching to a second PES, pissing again, but only getting punished once if not yet notified. But then why would they switch, they might as well keep using the same thing until they receive notification (or not). Sorry, I just don't see that 7L is attempting to prevent the player from doing anything, it seems strictly to protect the player -- i.e. MLB could know that the first test is positive, collect a second piss, then notify -- that's what it's meant to prevent.j

I note that 3H "Multiple Disciplines for the Same Use" also refers to "same use of a prohibited substance". Here limiting it to a specific substance makes sense -- this clause is intended to protect the player if, after notification, he still has the substance in his system. If he pees positive again, he can claim it's the same usage he's already peed positive for and that claim is judges by the medical officer. This clearly does need to be the same specific substance -- i.e. obviously peeing positive for nandrolone then claiming your second positive for THG is just the residual of your first use won't wash. So maybe 7L is intended to mean the same substance.

Minor I suppose but clause 3H "Multiple Disciplines ..." sure seems to belong in Section 7 "Discipline" not in Section 3 "Testing". At least change the title of 3H to "Multiple Violations". If 3H were placed next to 7L, the meaning might be clearer.

I'm seeing more grounds for the "specific substances" interpretation but at the same time it seems pretty clear that peeing positive for multiple things in one specimen is meant to be considered a single violation, not multiple violations. 3F1 says A test will be considered "positive" if any substance meets the levels. So one test = one positive, seemingly no matter how many things might get flagged. 7K1 explicitly refers to 3F1. 7L explicitly refers to 3G which, duh, immediately follows 3F and refers to "a positive test result."

Finally ... was ARod actually using only 3 specific substances in that timeframe? 50x3 would seem to suggest so.
   65. Ray (RDP) Posted: January 14, 2014 at 01:16 AM (#4638359)
Note that Horowitz did go beyond what even MLB asked for. MLB asked initially for, in the Notice of Discipline, a suspension "for the remainder of the 2013 season (including postseason) and the entire 2014 regular season."

Horowitz in turn, entirely on his own accord, decided to suspend ARod through the 2014 postseason as well.
   66. Never Give an Inge (Dave) Posted: January 14, 2014 at 11:31 AM (#4638540)

I just noticed A-Rod is suing the union, too. Is that normal or are they going to be pissed about that?

Um, yes they are pissed. From the Wall Street Journal article on the lawsuit:

Tony Clark, the new head of the Players Association, fired back early Monday evening.

"His claim is completely without merit, and we will aggressively defend ourselves and our members from these baseless charges," Clark said.

He continued, "The Players Association has vigorously defended Mr. Rodriguez's rights throughout the Biogenesis investigation, and indeed throughout his career. Mr. Rodriguez's allegation that the Association has failed to fairly represent him is outrageous, and his gratuitous attacks on our former Executive Director, Michael Weiner, are inexcusable."
   67. Fancy Pants Handles lap changes with class Posted: January 14, 2014 at 11:41 AM (#4638556)
The Players Association has vigorously defended Mr. Rodriguez's rights throughout the Biogenesis investigation

*snickers*
   68. Ray (RDP) Posted: January 14, 2014 at 11:42 AM (#4638557)

Tony Clark, the new head of the Players Association, fired back early Monday evening.

"His claim is completely without merit, and we will aggressively defend ourselves and our members from these baseless charges," Clark said.

He continued, "The Players Association has vigorously defended Mr. Rodriguez's rights throughout the Biogenesis investigation, and indeed throughout his career. Mr. Rodriguez's allegation that the Association has failed to fairly represent him is outrageous, and his gratuitous attacks on our former Executive Director, Michael Weiner, are inexcusable."


As opposed to the statement Clark would have made in bizarro world, which is "You know, ARod is right, we admit it, we fell down on the job and didn't adequately protect his rights and even our executive director suggested ARod was guilty and publicly aired the legal advice he gave to ARod when he said that after seeing the evidence he advised ARod to take a certain number of games."

Obviously Clark is going to come out hard against a legal attack on the union. Duh.
   69. JL Posted: January 14, 2014 at 11:57 AM (#4638578)
According to the arbitrator's decision (page 23), the questions on which Bosch claimed his Fifth Amendment rights were about his activities with other players, clients who may be minors (the "H.S." notations in Bosch's notebook), sources of the PES, and finances related to activities not involving ARod. I don't know that those questions are exactly pertinent to ARod's case.


ARod claims that he went to Bosch for nutritional supplements that were legal and permitted. Based on that, information about whether what Bosch gave to other players matched this testimony seems potentially relevant, as does the source of the PES (to determine if they were in fact PES). I think clients who were minors and the other finances do not seem relevant.

Be that as it may, admissibility questions are usually left to a judge or arbitrator, so probably not much overturn here.
   70. BrianBrianson Posted: January 14, 2014 at 12:20 PM (#4638607)
The bridge from ARod to the players' association is already ashes. No reason for ARod to be concerned about burning it. Given they already threw him under a bus, he's be foolish to be concerned about getting their help in the future.
   71. Athletic Supporter can feel the slow rot Posted: January 14, 2014 at 12:27 PM (#4638612)
Wait, there are lawyers who visit this site?!


I laughed.
   72. dlf Posted: January 14, 2014 at 12:45 PM (#4638636)
No, I mean a reasonable understanding of what penalties he faced under the JDA ahead of time for such basic conduct such as "first offense and multiple substances covering multiple years."


As a general rule outside the collective bargaining context, vague terms are interpreted against the drafter. But this principle doesn't apply to collective bargaining. This is particularly true here where the CBA was negotiated at arms length by MLB and MLBPA, two parties with access to sophisticated lawyers and substantial negotiating leverage. Vague terms should have been negotiated out at origination. Where they aren't, it is the job of the arbitrator to interpret and enforce without a presumption against either party. Rodriguez was subject to discipline under 7G from the day the JDA was executed, he had constructive knowledge of that, and was given express notice of the charge ("pursuant to Section 7.G.2 ... you are hereby suspended for 211 regular-season games ...")

I am very surprised not with Horowitz's ruling on the issue, but the manner in which MLBPA / Rodriguez tried their case on this issue. I can't be certain because Horowitz doesn't identify every witness* but it appears that no one from the union or player's side presented any evidence of the intent of the drafters to help clarify the vague terms. They could and probably should have called witnesses to explain the progressive discipline provisions. Further, they should have called witnesses and or submitted documents to establish that people suspended for positive tests did not merely test positive for a single use of a single substance. That they failed to do so left the arbitrator with less evidence than a reader here has.

Similarly, I am very surprised that MLBPA / Rodriguez didn't call witnesses to rebut Bosch's claims. We know Rodriguez passed a bunch (12 IIRC) of tests during the time Bosch claimed to have been providing PEDs. Bosch's testimony and the documentary submission provided a detailed list of the dates, times, quantities, and specific substances. Why did union and player not call a real doctor to testify that if Rodriguez used as Bosch alleged, testing would have caught him? (I don't recall if this was in the 60 Minutes piece or the arbitration award, but if the latter, they also could have called a doctor to contradict the testimony that the 'gummies' would have had an immediate positive [restorative / performance enabling] impact and still be undetectable 3 hours later.)

(*I follow what is probably a minority position among arbitrators in that I try to list every witness and summarize their testimony in my written decisions. By doing that, I do my best to make sure that the party that lost believes I heard what they had to say as well as understand their legal and factual arguments even if I disagree. It also lets an external party undertand my rationale without resorting to assumptions about what was or wasn't argued. Horowitz's factual findings were more chronological and prose-like instead of a detailed recitation of all the testimony that was presented. There is nothing legally incorrect with Horowitz's approach, but here it leaves me inferring what was actually argued and presented.)

Note that Horowitz did go beyond what even MLB asked for. MLB asked initially for, in the Notice of Discipline, a suspension "for the remainder of the 2013 season (including postseason) and the entire 2014 regular season."

Horowitz in turn, entirely on his own accord, decided to suspend ARod through the 2014 postseason as well.


Come on Ray. I agree with much of what you have written about the legal cases against Bonds, Clemens, and the arbitration case involving Rodriguez, but this is just silly. If your reading were correct, all a player would have to do to avoid any suspension is to appeal the case to arbitration and delay imposition until after the 50/100/150 days had run. That would be an absurd result. A player is entitled to a grievance hearing, but merely filing doesn't reduce the penalty. Under your interpretation, since MLB's notice said 211 days, plus the 2013 post-season, and since the suspension was stayed pending the appeal, the suspension is partially mooted even if Rodriguez had not prevailed at all.

Of course since we all know the Yankees won't be in the post-season in 2014 (Yay!) this part of the suspension is irrelevant.
   73. Ray (RDP) Posted: January 14, 2014 at 01:03 PM (#4638650)
Come on Ray. I agree with much of what you have written about the legal cases against Bonds, Clemens, and the arbitration case involving Rodriguez, but this is just silly. If your reading were correct, all a player would have to do to avoid any suspension is to appeal the case to arbitration and delay imposition until after the 50/100/150 days had run. That would be an absurd result. A player is entitled to a grievance hearing, but merely filing doesn't reduce the penalty. Under your interpretation, since MLB's notice said 211 days, plus the 2013 post-season, and since the suspension was stayed pending the appeal, the suspension is partially mooted even if Rodriguez had not prevailed at all.


You're misreading me. The Notice To Discipline said 211 games which would have taken them through the 2014 regular season. Had ARod not appealed (even to the arbitrator) he would have been eligible to play in the 2014 postseason. (The Notice specifically excluded the 2013 postseason but did not specifically exclude the 2014 postseason which strongly suggests that since no specific exclusion of the 2014 postseason was present, that ARod would have been eligible to play in the 2014 postseason.)

Now the arbitrator said, "ok, not 211 games but still 162 games." So in essence the arbitrator simply chopped off the 51 games ARod already played at the end of 2013. So that would have left ARod still eligible to play in the 2014 postseason. Instead, the arbitrator went further to specifically exclude ARod from that when even MLB did not. There was no justification for having the "162 games" end after the 2014 postseason rather than after the 2014 regular season. That went beyond the Notice. I am not arguing "nyah nyah I appealed and now time has passed and you can't count that." I'm saying that Horowitz simply went beyond the Notice because the 162 games is up at the end of the regular season.
   74. dlf Posted: January 14, 2014 at 01:16 PM (#4638662)
The notice said 211 plus a post-season. It specifically referenced the beginning date of the suspension. Rodriguez doesn't get to count that as time served to the eventual 162 included in the award. That the notice further included reference to the 2013 post-season has no more limiting effect than the specific language stating that the suspension would begin on a date certain last August. Since the date it was supposed to begin has passed, that is modified via the arbitration process. Since the post-season he was to have served is now in the past, it too is modified. This does not expand or go beyond the suspension included in the notice of intent.
   75. Ray (RDP) Posted: January 14, 2014 at 01:19 PM (#4638666)
I see your point and think it's reasonable, but I still disagree. The Notice said 211 including the 2013 postseason, which came DURING the 211 game period. Now the period has been modified to 162, and the 2014 postseason would fall OUTSIDE the 162 game period.
   76. Sunday silence Posted: January 14, 2014 at 05:47 PM (#4638973)
So now basically MLB can stack penalties for first uses if there are multiple substances, and can stack for multiple uses, which really runs counter to the 50-100-permanent structure that the agreement seems to set out. MLB can exact severe penalties on players who have not yet been disciplined...



I agree with Ray on this. The idea of stacking several penalties for using different substances is being counted as "multiple first time offenses" is quite odd. That defeats the entire purpose of a first offense structure. The reality of doping is that multiple substances, multiple injections, multiple molecules, etc. are going to be involved.

I would have thought that a well reasoned opinion would have simply said, 50 games for the use, and 100 for the obstruction, and you have enuf notice from the pleadings to be charged twice. Or alternately, 50 games for 2011 and 100 for 2012, and you have enuf notice and the behaviour is so blatant and egregious that that is two violations.

I would have strived very hard to avoid anything over 150 because now you really start pushing this multiple use/charges thing.

Obviously, ARod makes a very poor showing in all these proceedings. He didnt testify, he went to the press claiming it was a witch hunt; he wanted the Comm'r to testify etc. It seems to me that once you piss off the powers that be, you arent likely to get well reasoned opinions. Same thing in the Barry Bonds, obstruction of justice ruling.

I also agree that while there really are good arguments that ARod can make, he is unable to get little relief from Fed Court. That's the nature of these sorts of arbitration/administrative law; the Feds dont really care. Defendants rights under Due Process are often trampled upon in such, and the Feds could care less. Welcome to reality.
   77. Walt Davis Posted: January 14, 2014 at 09:44 PM (#4639128)
The idea of stacking several penalties for using different substances is being counted as "multiple first time offenses" is quite odd. That defeats the entire purpose of a first offense structure. The reality of doping is that multiple substances, multiple injections, multiple molecules, etc. are going to be involved.

I've decided this is reasonable to me actually. I am going to distinguish between "separate" positive and "second" positive.

Scenarios:

Player gives a specimen that eventually will be positive for Substance A. Before notification of this first positive, the player gives a second specimen that is positive for Substance A. This is covered in 7L -- the second result is neither a "separate" nor a "second" positive. Unless the first result is discarded for some reason, the second result essentially never happened.

Player gives a specimen with A. After notification he gives a second specimen with A. Under 3H the player can argue that the second result is a residual of the first usage. The Medical Testing Officer decides whether it is likely residual or a second usage. If the MTO rules against the player, this is a "second" positive.

Player gives a specimen with A. After notification he gives a second specimen with B. "Second" positive obviously.

Player gives a specimen with A. Before notification he gives a second specimen with B. And here's the tricky bit. 7L does reference "same" substance. And that makes sense -- this can't be residual from the original usage, it can't even be continuation of the original usage. This is a new usage. However, without notification, the player isn't yet aware they are being naughty so it doesn't seem in the spirit to call this a second usage. Using my terminology, Horowitz is calling this a "separate" positive but not a "second" positive.

I still haven't had time to read the ruling but I guess it would depend somewhat on the documented regimen. If ARod was taking the same mix of substances for the entire time, I would consider that to be continual usage of the SAME substance(s) and 7L would seem to apply. If ARod took Substance A in 2010, switched to B in 2011, switched to C in 2012 then I can see how those could be considered separate usages (i.e. not the SAME substance(s). I would also assume that it is the substance not the dosage that matters here -- i.e. a testosterone cream and a testosterone lozenge are the same substance.

There are also chemistry questions here I assume. I know squat about the chemistry but I assume that 4-hydroxytestosterone and 4-hydroxy-19-nortestosterone are really pretty much the same substance with the same effect. That is, even "same substance" might be a vague term in this context.

But if these were analytic positives such as in my last scenario, I'm not sure an arbitrator could rule differently than Horowitz and, at least, Horowitz's pathway here seems reasonable to me after all (assuming the evidence was believable, etc.) Usage of a second substance between usage of a first substance and notification of the detection of usage of the first substance was probably not intended to be covered by 7L. If the second usage is not excused by 7L then the arbitrator would seem to have only the choice between treating it as a "second first" (50 extra games) or treating it as a "true second" (100 extra games). In that way Horowitz may have been "kind" to ARod.

However if the scenario was an analytical positive for substances A, B and C followed by a second analytical positive for A, B and C prior to notification of the first, you don't get to call the first one positive for A and the second one positive for B. And I'm not sure Horowitz didn't do that here.

As to the extra 12 games, etc. -- I've got my doubts but I didn't hear the testimony. Still, I will never consider the lack of a confession to be "obstruction."
   78. Walt Davis Posted: January 14, 2014 at 10:00 PM (#4639139)
The main issue of course is that the JDA is written almost entirely around testing. Testing is generally a fairly quick procedure. I'd imagine the number of times a player has had to give a second specimen prior to the results of the first being known and notified is puny. I assume 3H and 7L were meant to only apply rarely. The contrary case of a new substance arising between peeing and notifying seems sufficiently unlikely they didn't give it a lot of thought.

This type of "non-analytic positive" -- which, by my amateur reading of the JDA isn't even what the JDA means by "non-analytic positive"* -- is so far from the scenarios considered under the JDA that the only way to come to a decision is to apply some form of tortured logic. Either you have to go with the logic that 3 years of usage is one positive test because there was no notification during those 3 years -- i.e. the key bit of 7L is notification -- or you have to put a lot of weight on "same" and "a" in 7L while still respecting notification. Or you can decide that 7G is whatever the Commish wants it to be.

* It seems to use "non-analytic positive" in reference to 3F2 (refusal to take a test) and 3F3 (tampering with a test). Nevertheless, the JDA does clearly identify "possession" as a no-no and obviously possession does not lead to a positive test result. So you can't say that this sort of case wasn't considered at all but there is virtually no guidance in the JDA about how to handle possession cases.

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