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Thursday, January 16, 2014
 
A-Rod, the MLBPA, and PED Culture Change

By now everyone has had time to digest Monday's news that Alex Rodriguez is suing both MLB and the Major League Baseball Players Association in an attempt to overturn the decision by arbitrator Frederic Horowitz's suspending him for the entire 2014 season.  While Rodriguez's case against MLB had been expected, his decision to also name the MLBPA in the suit took some by surprise.  In particular, Rodriguez alleges that the union violated its duty to fairly represent him in three ways: (i) by failing to take sufficient steps to stop MLB from leaking confidential details regarding his arbitration to the media, (ii) by failing to intervene to prevent MLB from obtaining information through it's Florida state court lawsuit against Biogenesis, and (iii) through statements made by former MLBPA Executive Director Michael Weiner allegedly suggesting that A-Rod was guilty of PED use.

Rodriguez likely included the claims against the MLBPA in his suit in hopes of boosting his chances of convincing the federal court to overturn the arbitration decision.  By alleging that the union did not fairly represent him in the matter, he can contend that he should not be bound by the arbitration's outcome, despite the fact that it was the result of a collectively-bargained-for procedure.  Rodriguez's chances of success on the claim are nevertheless quite slim, as a breach of the duty of fair representation typically requires a showing that the union acted in bad faith, or in an arbitrary or discriminatory way, neither of which appears to be the case here.

A-Rod's suit against the MLBPA can also be viewed in another light, however; in many respects, it is a natural consequence of the recent culture change within the union regarding PED use.  In the wake of the Biogenesis scandal, a majority of MLB players increasingly appear to favor stiffer punishment of PED violators.  For example, the MLBPA announced over the summer that it would not defend players in cases where there was overwhelming evidence of PED use, but would instead encourage them to reach a settlement with MLB.  While such a stance appears to reflect the majority opinion within the union, it also exposes the MLBPA to suits like Rodriguez's when an accused PED user feels that the union should have done more to protect him from league prosecution.

This culture change may also explain one curious aspect of the Rodriguez arbitration decision.  Prior to the release of the decision, commentators had questioned how MLB had reached the 211-game figure in its suspension of Rodriguez.  Indeed, under Section 7.A of MLB's Joint Drug Agreement (JDA), a first time violator is supposed to receive a 50-game suspension.  However, as the arbitration decision reveals, Rodriguez's suspension was not based on Section 7.A, but instead on Section 7.G.2, under which a player is "subject[] to disciplinary action for just cause" for "any violation ... not referenced in Section 7.A through 7.F."

As Fangraph's Wendy Thurm has pointed out, this reliance on Section 7.G.2 is somewhat curious.  Based on its express language, Section 7.G.2 only applies in cases where there has not been a violation of Section 7.A.  Section 7.A, meanwhile, expressly applies in cases where a player "tests positive for a Performance Enhancing Substance, or otherwise violates the program through the use or possession of a Performance Enhancing Substance," the latter half of which seemingly would apply to the facts of the A-Rod case.  Arbitrator Horowitz concluded that Section 7.A did not apply to Rodriguez, though, because A-Rod was not accused of using a single prohibited Performance Enhancing Substance, but instead of using three different banned substances.  In such a case, he determined, punishment pursuant to Section 7.G.2 was warranted.

Horowitz's reading of the JDA runs contrary to normal rules of interpretation, under which singular nouns are typically assumed to include the plural form, and visa versa, unless the context indicates otherwise.  In other words, the term "a Performance Enhancing Substance" would normally refer not only to the use of a single banned substance, but the use of multiple prohibited substances as well.

Horowitz's decision justifies his unusual interpretation of Section 7.A as follows:
MLB, the MLBPA, and the Player agree that Section 7.G.2 of the JDA supplies the governing framework for this case. The record establishes that cases such as this, involving continuous and prolonged use or possession of multiple 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.
Arbitration Decision at 28 (appearing as Exhibit A to A-Rod's complaint).

All of this raises the question of why the MLBPA would agree to such an interpretation of the JDA.  Indeed, because violations of Section 7.G.2 are not subject to the typical 50-100-lifetime suspension framework employed for violations of Section 7.A, David Waldstein of the New York Times notes that the Rodriguez arbitration decision potentially gives MLB significant new power to punish alleged PED users.  Admittedly, in Rodriguez's case the application of Section 7.G.2 was arguably beneficial, as his use of three different banned substances could have potentially justified a lifetime suspension under Section 7.A.  Nevertheless, given that the Rodriguez decision will serve as a precedent for future cases, and therefore may subject players that would normally be subject to only a 50 or 100-game suspension under Section 7.A to lengthier punishment, the question remains of why the MLBPA would take such a stance in the Rodriguez arbitration.

Although we don't know for sure why the MLBPA took the position it did, one possible explanation is that its stance reflects the union's changing culture with respect to PED use.  If a majority of union members now favor stiffer punishment of PED users, then the MLBPA's consent to the application of Section 7.G.2 in cases where a player used multiple banned substances begins to make more sense.  While this new interpretation will certainly hurt those accused of PED use in the future, it will likely also have a significant deterrent effect against PED usage.  As a result, the union may have concluded that it was willing to concede to a potentially questionable interpretation of the JDA in order to accede to the wishes of a majority of its membership.

Indeed, the union's stance on the applicability of Section 7.A to A-Rod's case appears to have shifted over time.  Last summer, MLBPA Executive Director Michael Weiner seemed to suggest that the Biogenesis suspensions were not subject to Section 7.A.  By the time Rodriguez was formally suspended in August, however, the union had apparently changed its position, with Commissioner Bud Selig acknowledging that "the MLBPA has now taken the position that your [Rodriguez's] discipline ... can only be imposed in accordance with the schedule set forth in Section 7.A." (Arbitration Decision at 14).  By the time that Rodriguez's case reached arbitration, however, the union apparently had flip-flopped once again, agreeing that Section 7.G.2 was the applicable provision.

Whether the union will ultimately come to regret its position in the Rodriguez case remains to be seen.  At a minimum, though, it appears to reflect a new reality within the MLBPA regarding PED use.





3 Comments:

A welcome analysis that makes me believe ever more firmly that these awards should be public. As a participant in an international arbitration that yielded a nearly incomprehensible result, I'd also argue that the record should be public as well. You can say that the record supports anything you want in an award if no one is going to see the record.

Anonymous Joseph K -- 1/16/2014 10:44 AM  


There are many ambiguities in the JDA, in large part because the document is a culmination of numerous revisions in which words, sentences and sections were added or removed at various points over the past 7-8 years. The first JDA contemplated discipline only for analytical positives; the JDA didn't permit any player discipline based on circumstantial evidence (non-analytical positives). Somewhere along the way, the term "non-analytical positive" was added in a few places within the document but, interestingly and surprisingly, nowhere is it addressed how non-analytical positive evidence should be evaluated or what penalty may be imposed in the absence of analytical positive evidence. An argument can be crafted that the document is unclear whether a player even CAN be disciplined in the absence of a positive test. Section 7.G.2 was an afterthought (not in the original version) and who knows what that one sentence is even attempting to address, but I agree with you that the arbitrator's interpretation of it is a strained one.

As to your point about the "recent culture change within the union regarding PED use," regardless of the wrongdoing being asserted and alleged, the union certainly has an interest in each individual player receiving fair treatment and a fair penalty under a just cause standard of review. If the union does not believe this ruling achieves that end, then the union can and probably should fire the arbitrator.

Blogger Rick Karcher -- 1/16/2014 6:18 PM  


Excellent piece, and good comments, too. I'm not surprised to learn that the JDA is a patchwork. Section 7.G.2 is the sort of catch-all provision that's easier to conceive than it is to draft. Certainly the JDA needs revision to distinguish the separate applicability of sections 7.A and 7.G.2. (Presumably, in a complex case, a play could be subject to both--receiving a suspension under 7.A for a positive test, with a further suspension added under 7.G.2 for additional wrongful conduct--proven by non-test evidence.) Overall, isn't the difference between the two terms automatic discipline, upon specific proof, vs. discretionary discipline, upon whatever proof exists?

In any event, I would think the MLBPA would want the JDA revised to clarify the way the provisions work together. Finally, I realize that the term "just cause" has a long history of use in labor agreements, grievances, arbitrations, and so forth. (I think I've heard clever workers refer to it as "just cuz.") But it might be a good idea to establish a clearly high standard in the JDA, too, if so much will depend on it.

Anonymous Anonymous -- 1/20/2014 4:30 PM  


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