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June 5, 2013 BizballSuspensions May Loom for Players Connected to Biogenesis Clinic
Major League Baseball may seek to suspend as many as 20 players, including Alex Rodriguez and Ryan Braun, as part of the investigation into the Miami-area Biogenesis anti-aging clinic, according to a report by ESPN. The league has been pursuing legal avenues, including a lawsuit against Biogenesis, Biokem, Tony Bosch of Biogenesis, and others, seeking damages. That and other pressure may have finally taken a toll on Bosch as, according to the ESPN report, he is ready to cooperate with MLB investigators in exchange for their dropping the case. With Bosch testifying against players, the league could begin the suspension process “within the next few weeks.” Should all the players be suspended, it would mark the largest number of suspensions for performance-enhancing substances in the history of professional sports. In 2005, the first year of mandatory drug testing, MLB suspended 12 players between April and November of the year, the largest amount of suspensions at the major-league level to date. At the time, first-time suspensions against the joint drug agreement between MLB and the players’ union were only for 10 games. Since then, the number of games a player can be suspended for has increased dramatically to 50 for a first violation, 100 for a second, and a potential permanent suspension from both MLB and minor-league baseball for a third. But, according to the ESPN report, the league could 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.” This would seem to be in violation of the current drug agreement. 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. As part of the drug policy, if the league pursues any suspension, the MLB Players Association has the right to file a grievance (and in this case, it most assuredly will) based on the fact that the league would be seeking suspension not for a positive drug test, but rather with “non-analytical” findings via testimony from Bosch. Reports have alleged that he supplied substances such as testosterone and hGH that appear in notes obtained through investigative reporting, initially via the Miami New Times. With an appeal, the grievance is heard before an arbitration panel that consists of a representative from Major League Baseball (most likely MLB’s Executive Vice President, Economics & League Affairs, Rob Manfred), a representative from the MLBPA (most likely Executive Director Michael Weiner) and the “panel chair” who is deemed to be neutral. That arbitrator, who is selected by both sides, is currently Fredric Horowitz, who replaced Shyam Das. It’s important to note that Das was fired shortly after ruling in favor of Ryan Braun in his case to get his 50-game suspension for elevated levels of testosterone rescinded due to mishandling of his collected urine sample. At the time, league officials were furious at Das’ ruling and talked of taking the matter to court. At the time, it was the first time ever that a suspension had been overturned (shortly thereafter, Eliezer Alfonzo of the Rockies had his 100-game suspension for elevated levels of testosterone rescinded), and the latest joint drug policy sees those loopholes closed. Still, the league has never forgotten “the one that got away,” and the fact that Braun’s name is linked to notes by Bosch adds to speculation that Biogenesis was the source of the synthetic testosterone allegedly provided to the former NL MVP. Should the league prevail and suspensions be doled out to all the players, the financial implications would be staggering, with players spanning far and wide across the league. Here is an alleged list of players within the ledger of Tony Bosch, with their club and 2013 salary in brackets. Others in the Bosch documents are listed as initials and are currently unknown.
On top of these players, Robinson Cano (New York Yankees), and Gio Gonzalez (Washington Nationals) were mentioned in the Bosch documents. The league determined that the matter with Gonzalez requires no further investigation, as it was found that no performance-enhancing substances were provided to him through Biogenesis. While reports have gone back and forth as to whether Cano is still a target of the investigation, there have been concerns that Sonia Cruz, a spokesperson for Cano’s foundation, is listed in the Biogenesis documents. The inference is that she could have possibly been a go-between and potentially providing banned substances to Cano, but a separate report on ESPNNewYork had a league official saying, “"Cano is not a part of this.” Should Cano be sucked into the investigation, it could have financial implications as the Yankees second baseman is a free agent at the end of the season and is now represented by Jay-Z. The league may see an uphill battle with the suspensions, even if Bosch provides testimony, as he reportedly only dealt in cash, and the ledgers are vague in their documentation. While a code name and dollar amount could be listed, the records do not directly say what banned substance a player may have purchased. That is likely to create difficulties in the appeals process, where the burden of proof falls on the Commissioner’s Office. According to the ESPN report, Bosch is scheduled to meet league officials within a week and any communication of a suspension to the players and MLBPA would come within two weeks after that. Depending on how long the grievance process takes, it could take longer for any suspension to be announced. Based on confidentiality agreements within the drug policy, no information is announced by the league if a player succeeds in having a suspension overturned.
Maury Brown is an author of Baseball Prospectus.
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Free Agent Watch: National League, Week 10
My gut reaction is that, if the ESPN report is remotely true, this could be a massive over-reach by MLB. 100 game suspension for a first offense on Braun, and double-dipping on suspensions for people like Cabrera and Grandal, is not going to sit well with the MLBPA.
On the other hand, I'm not sure what the union could do about it. The latest CBA lasts through 2016, and a labor action to protect "steroid cheats" (which is how the media will portray it) would probably be a PR disaster.