THT: Freedman: Does MLB have a case this time?

Eugene Freedman has the answer…

Just cause doesn’t mean just ‘cause. You’re probably thinking about your non-unionized workplace. Your employer can discipline or fire you for a good reason, a bad reason, or no reason at all. In a workplace represented by a union, like Major League Baseball’s, it doesn’t work that way.

...But, beyond that, there’s something that MLB has to go up against in this case: its own testing regime. MLB has called its testing the best in sports or at least U.S. professional sports. Meanwhile, except for a mere few of the players on the list, all of them have tested negative, repeatedly negative, over the course of the period they are alleged by the questionable witness to have received and used these banned substances. MLB is doing nothing more than undermining its own testing system in the eyes of the media and the public. “Yes, Mr. Arbitrator we believe in our testing system, it’s the best around, and these players tested negative on multiple occasions, but you should ignore that.” That sounds more like exculpatory evidence than it does corroborating evidence for the testimony to be offered by MLB’s witness.

But, doesn’t that also implicate the players who tested positive and who also appear on the list? Of course it does. But, they have served their suspensions. They can’t be disciplined twice for the same offense, so how would MLB prove that possession didn’t occur at the same time as their positive test? Wanting the test and the alleged possession to be separate offenses is one thing, but MLB will have to prove it to be more reasonable than not by a preponderance of the evidence.

And what of the other rumored charge—lying about PED usage during the investigation? That is a compounding charge that relies upon the first charge being proven. If MLB can’t prove PED usage or possession, how can it further prove lying during the investigation?

It would seem to me that this is just another attempt by MLB to undermine its own product: its players. Surely, it has a goal better than challenging its testing program publicly and losing a host of very public discipline cases and ultimately firing more arbitrators. MLB representatives have stated at many professional labor relations conferences over the past couple years that it has raised its game: it has hired professionals to handle labor law to match those of the MLBPA who had been beating them for decades. This case, at first blush, appears to be just another in a long line of overreaching by the league and the owners in a multi-decade-long attempt to pretend that it doesn’t have to follow its contract or labor law.