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Thursday, May 07, 2009
On Being Manny.

As some of you may have noticed, Manny Ramirez was suspended for 50 games today for violating Major League Baseball’s Joint Drug Prevention and Treatment Program (the “MLB Program”). According to reports, Ramirez does not plan to appeal the suspension, but I will go out on a bit of a limb here and suggest that we may be hearing a bit more about this story in the next several days. So, as you prepare for the onslaught of Manny coverage and ponder the impact this might have on Brett Favre’s potential un-retirement, here are some of the basic questions raised by this story, with a few answers. Please add your own thoughts, questions, and answers in the comments.

1. Did Ramirez test positive for a banned substance? Apparently yes, but while many of the articles floating around the internet today are claiming that Ramirez was punished because of the positive test, the NY Times is reporting that the suspension was not triggered by the test itself. According to the Times,

Results from urine samples provided by Ramirez showed traces of substances that raised concerns among baseball officials but it was unclear if it was enough to suspend him, according to people in baseball briefed on the matter. The officials investigated further and found evidence in Ramirez’s medical files that he was using Human Chorionic Gonadotropin (H.C.G.), a fertility drug for women that has been known to be used by athletes to generate the body’s production of testosterone after steroid use.

2. Why is he being suspended for 50 games? HCG is specifically listed as a banned performance enhancing substance in the MLB Program. A positive test for HCG, or any other banned performance enhancing substance, would have triggered an automatic 50 game suspension. However, even absent a positive test sufficient for the automatic suspension, as was apparently the case here, the MLB Program permits the Commissioner to discipline a player for “just cause.” The evidence found in Ramirez’s medical files was apparently sufficient to provide Bud Selig with just cause to suspend him.

3. How many Manny Being _____ jokes will this incident spawn? There’s no telling. So far, I have seen “Manny Being Medicated,” “Manny Being Barry,” “Manny Being Sketchy,” and “Manny Being Pregnant.” I have high hopes for the efforts to come from Jon Stewart and the NY Post.

4. Could Ramirez have filed an appeal? Yes, the MLB Program provides players with a right to appeal to an arbitration panel. And, unlike the strict liability policy used by the NFL, the MLB Program permits the arbitration panel to review the Commissioner’s “just cause” determination and to overturn a suspension if the player can prove that his “test result was not due to his fault or negligence.” The player “cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial. Among other things, such objective evidence may question the accuracy or reliability of the ‘positive’ test result.”

5. Why isn’t Ramirez filing an appeal? The most likely answer is that he knew the appeal was unlikely to be successful and he wants to start the clock on the 50 day suspension so he can get back on the field for the second half of the season. (Note: “That’s just Manny being _____” is also an acceptable response to this and all questions that inquire into Ramirez’s motivation for doing anything).

6. Why is it likely that his appeal would have failed? Ramirez does not deny taking the banned substance. Here is his statement: “Recently I saw a physician for a personal health issue. He gave me a medication, not a steroid, which he thought was OK to give me. Unfortunately, the medication was banned under our drug policy.” Players have long been warned that they should consult league drug administrators before taking medication or over-the-counter supplements to ensure they are not unintentionally ingesting a banned substance. It is unclear what type of evidence Ramirez would have needed to present to prove that he was not at fault or negligent, but it is highly unlikely that proving that his doctor failed to properly check the banned substance list (as, perhaps, opposed to proof that the doctor sabotaged or defrauded him) would have been sufficient.

7. What is the fastest land animal? The cheetah.

8. Why was Ramirez taking a female fertility drug? According to Yahoo! Sports, the drug was prescribed to address Ramirez’s erectile dysfunction. (Insert your own joke here).

9. If Ramirez had a legitimate medical need for the drug, why is he being punished? Players are permitted to take a prohibited substance for legitimate medical reasons as long as they get prior approval from the Independent Program Administrator of the MLB Program. As the MLB Program states, a player “authorized to ingest a Prohibited Substance through a valid, medically appropriate prescription provided by a duly licensed physician shall receive a Therapeutic Use Exemption(“TUE”)….A Player with a TUE for a Prohibited Substance does not violate the Program by possessing or using that substance.” Apparently, Ramirez never received—or, from all reports today, requested—a TUE.

10. Is Jose Canseco the smartest man alive? Probably not, but he did predict that it “is most likely, 90%,” that Ramirez was one of the players that tested positive for performance enhancing drugs in 2003. Of course, if Ramirez is telling the truth, he only “recently” started using a banned substance and has otherwise been performance-enhancing-drug-free during his career.

11. How bad is this for baseball? Well, on the one hand, pretty bad. The two highest paid players in baseball have now admitted to using banned substances. And, of the 8 active or recently retired home run leaders (Bonds, Griffey Jr, , Sosa, McGwire, Palmeiro, A-Rod, Thome, and Ramirez) all but 2 (Griffey and Thome) have been tied to some form of steroid use. On the other hand, the league can argue that this proves that the drug testing policy does work (ie, it catches “cheaters”) and Congress doesn’t need to get involved (or get any more involved than they have already been). It also sends a fairly strong message to other players in the league—if you are caught, even if you are a superstar, you will be suspended.

12. I have Ramirez on my fantasy baseball team. Can I sue him? Well, first I'd recommend that you try trading him to one of your friends who doesn’t sit in front of a computer all day and may not have heard the news. Doctors are usually a good bet. If not, I hope to cover that issue (and the slightly more serious issue of whether the Dodgers, fans, etc., have any legal recourse) in the next few days.


Re: Question #12... don't tempt the Above the Law promissory estoppel troll. He's a nasty one.

Anonymous Anonymous -- 5/07/2009 10:16 PM  

This comment has been removed by the author.

Blogger Marc Edelman -- 5/08/2009 10:15 AM  


As always, great piece.

(1) With the Dodgers needing a new cleanup hitter, do you think they would consider paying $400,000 for the best one in baseball history? I hear he also has a great OBP and is available.

(2) As to your point no. 12, I thought you would be amused by recent devlopments at SportsJudge involving people trying to trade Manny. If so, see below.

Blogger Marc Edelman -- 5/08/2009 10:16 AM  

Honestly, this is one of the best posts ever!

Anonymous Anonymous -- 5/08/2009 2:01 PM  

Manny flushed $8 million in the toilet for pregnancy drugs...SMH

Anonymous BettorFan -- 5/08/2009 6:32 PM  

There has been much written and spoken about ‘stricter’ penalties for [unauthorized] use of drugs. I would propose that there be stricter testing for drug use. I propose that the players undergo periodic, say every 2-3 weeks, analysis of simultaneous blood and urine samples. The players are proud to take IVs during a game for treatment of dehydration and proudly point to their visits to patients hospitals where many have daily blood draws. For the privilege of earning even the minimum salaries in their sport, let alone $8-20 million per year they should be willing to have the testing – at least, if they are ‘clean.’

preston stein

I am logging in as anonymous because I don’t know how to use the other options and this seems to be moderated.

Anonymous Anonymous -- 5/09/2009 11:42 AM  

Hi there,

Great post. I'll be really interested to see what kinds of legal consequences emerge.
I've been wondering on my blog about the possibility of serious financial consequences for this sort of thing -- basically relying on tort law rather than MLB punishments alone to enforce the drug policy and make the game more fair. Wall Street Journal has some crazy statistics about how much money the Dodgers are losing over this. Do you think the morals clause argument is going to have any teeth?

OpenID nurseandlawyer -- 5/09/2009 2:26 PM  

now that Manny has half the season off he can go home to his private island and wallow while he sips iced tea and works on his tan

Anonymous Nomad -- 5/14/2009 11:52 PM  

Nice Post. Thanks for this information.

Anonymous Anonymous -- 8/27/2009 12:03 PM  

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