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Wednesday, February 11, 2009
Baseball, steroids, and jurisprudence

Here is a question for the jurisprudes and the crim law types out there (or just anyone else with an opinion):

In 1991, baseball established by rule that it was against the rules of the game to use a range of drugs, including steroids. There was no testing, no enforcement mechanism, and no determinate punishments for using steroids. That was the state of affairs until the start of the 2006 season, thus it was the state of affairs from 2001-03, when Alex Rodriguez has admitted to using steroids and when he tested positive. Of course, the commissioner did have catch-all "best interests of baseball" powers, so punishment was possible through that power. But absent testing, there arguably was no way ever to find out that someone was using steroids.

So, my question: Has Rodriguez "cheated" or "broken the rules" of baseball (put aside societal laws against steroid distribution, possession, or use) given the legal state as described. Is a stated legal prohibition that is not, as a matter of law, enforceable or punishable, a legal prohibition that can be violated?


The answer is absolutely, he violated the rules of baseball. ask jason grimsley. A-Rod could be suspended, though I think it would be highly unlikely. A-Rod's confession to Gammons is an admission of violating the rules. Thus it is a "non-analytical positive." Like Grimsley, the commissioner could invoke his powers to suspend a-rod for violating the league rules. Moreover, there is no rule that it has to be the amount of time that it established in the CBA - those penalties applying to positives from drug testing. Selig could suspend him for 1 game or for life.
Selig can't use the positive test to suspend him. Thus, I am sure A-rod and the union would argue the confession was coerced, inextricably intertwined with, or the fruit of the breach of the CBA’s confidentiality. Then it might become important as to how the report was leaked. Of course, this would make everyone else weary of confessing in the future.
I think you’re also getting at can the league discriminate against A-rod – they didn’t enforce their laws against others – why against him. As a private entity, courts will support what they do, unless it’s illegal, arbitrary, or if they don’t follow their own rules. Consider Grimsley and others have been suspended under the Selig’s non-analytical positive power, I don’t think its too arbitrary. It’s a matter of having strong evidence against some and not so strong evidence against others. Even though the commissioner doesn’t have to find proof beyond a reasonable doubt or even a preponderance of the evidence, he at least wants to have some evidence, whatever standard he imposes, to make sure he is treating players fairly – to limit the success of a union grievance.

Anonymous Anonymous -- 2/11/2009 6:58 PM  

to follow up on my orig anon post, i think a-rod was sufficiently ambiguous and indefinite enough to avoid a suspension. Although he admitted to using "banned substances," he didnt say what. he also referred to the stuff possibly being legal then, but illegal now.

A-rod/the mlbpa would just say ok, what substances did he take mr. selig? and the answer would be, i dont know. thus no violation. again, this is b/c the positive test can't be used to say what substances per the CBA agreement re: survey testing

Anonymous Anonymous -- 2/11/2009 7:03 PM  


Grimsley is not a good comparison because he was suspended by Selig after he was unconditionally released by the Diamondbacks (and I don't believe he served any time under the suspension). Grimsley or the union filed a grievance against the Diamondbacks because they refused to pay him and I believe they ultimately settled the grievance. Also, you say that "others have been suspended by Selig's non-analytical positive power". I can't recall any others. Which players are you referring to?


As is the case with any player discipline, labor law governs, which places two important limitations on the baseball commissioner's authority in player disciplinary matters: Any provisions in the CBA and a "just cause" review by a neutral arbitrator.

Regarding the CBA, the union and league agreed that they would randomly and anonymously test a certain percentage of players (prior to establishing a drug testing program) as a condition to setting forth detailed testing procedures, guidelines and suspensions. The intent of the parties was obviously that any player who tested positive in that testing pool would not be suspended by the commissioner under the best interests clause, because if the intent were otherwise, certainly the union would not have agreed to it and such an interpretation would make the anonymity requirement superfluous.

I'm not sure how an "admission" under these circumstances gives the commissioner grounds to suspend. When it is revealed six years later that Rodriquez was on this list of players who tested positive, should Rodriquez be expected to take the position that he wasn't on the list or that it must have been a false positive? Perhaps the real problem is that the league shouldn't have agreed to give "a free pass" to players who tested positive out of that sample pool -- but that's a different issue.

Blogger Rick Karcher -- 2/12/2009 6:58 AM  

Jay Gibbons and José Guillén were suspended but the union challenged it and a deal was reached were players in the mitchell report were given amnesty. but it still evidences the commissioner's use of the best interest clause - which shows mlb had intent to enforce their rules - thus action against a-rod would not be arbitrary.

Ryan Jorgensen was suspended, i dont know if he actually served it or if the union filed a grievance and won.

selig has strategic decisions to make. he could make a strategic decision to try getting everyone to be forward looking and thus he wants to deter players from speaking-out and confessing in the future. Or, he could figure the only way to get this really over with is for all of the players to come out (which is unlikely, unless they are exposed) - thus he would decide not to penalize players.

if he wants to be able to use the best interest clause in the future -- b/c of the department of investigations MLB supposedly has in force now, maybe taking up the a-rod case, which he would likely lose, would be a bad idea. it would set even more arbitration precedent in favor of the mlbpa. because the confession was ambiguous and it was linked to the test results coming out, an arbitrator would likely rule on the side of the player.

However, this does not mean a-rod did not violate the rules - he used, as he puts it, "banned substances. The complications are procedural -burden of proof and admissibility of evidence questions. if the police raid a drug house without a warrant and thus can't use all the evidence and the defendants go free, did the defendants not break the law? or did the government just fail to meet their burden? I believe it's the later - the law was still broken.

Anonymous Anonymous -- 2/12/2009 10:46 AM  


Gibbons is not a good comparison because the Orioles cut him in spring training that year (and so he didn't serve any time under any suspension for a non-analytical positive).

Guillen is a terrible comparison because his entire suspension was rescinded (so that example actually works to Rodriquez's favor under a "just cause" standard).

Jorgensen's 50 game suspension isn't even applicable because he actually tested positive under the drug program that was implemented.

Thus far, no player has served a suspension for a non-analytical positive. Labor law, not WADA law, governs the suspension of players. Your point that "the law was still broken" doesn't address labor law principles, nor the intent of the parties in construing the CBA.

Blogger Rick Karcher -- 2/12/2009 12:38 PM  

Cheated and broken the rules, no doubt. So has every other player that has used any listed "drug". The problem is the fear that the commissioner has to enforce testing or for that matter any punishment on an egual footing. The commissioner is simply afraid of the "union" and their power be it to stop a season, cancel a season or want more money. What we deal with is a group of spoiled, idolized, does not apply to me, fat headed, pigs. The commissioner fits into this nicely as he makes rules and never enforces them. Do not make a rule you are not willing to enforce, period. DO not be afraid to act to be fair, equitable, have some ethical concerns. A rule or law needs to be thought out totally, prior to its enactment. IF you decide that you will not enforce, don't ask or don't tell you are STUPID to make a rule in the first place! This is true be it baseball, football, hockey, cricket, rugby, basketball whatever.

Anonymous Anonymous -- 2/12/2009 1:27 PM  

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