doublejeopardy

The primary focus of the latest twist in the BioGenesis story has been the implications it may have for Alex Rodriguez and Ryan Braun, two true superstars in the game who have, so far, escaped punishment for any alleged PED usage, despite the pungent stink of ‘roids taint that surrounds their every step. I suppose it’s understandable why that’s the angle most explored, but to me, and I would assume to every Blue Jays fan, by far the most fascinating thing is how Melky Cabrera, and others who served 50-game suspensions that ended his 2012 season, has continued to be listed among those potentially facing punishment.

Melky, quite rightly, certainly believes that the matter should be closed, telling Jorge L. Ortiz of USA Today following yesterday’s game in San Francisco that “I don’t know anything about it. This is the first I hear of it. If they suspend me again, I think that would be a harsh punishment because I already served my sentence. But it’s up to them. I believe I’ve already served my sentence, especially missing the playoffs. That’s what hurt me the most.”

That’s precisely where Alex Anthopoulos was at during Spring Training, telling Jayson Stark of ESPN.com, “My understanding is there’s no issue. My understanding is that, as of today, we really don’t have anything to be concerned with. He served a suspension and right now, that’s it. His suspension has been served.”

As of today– an Anthopoulos classic that gives just enough of a speck of daylight for things to change dramatically without him ever having been technically wrong on the issue. And wrong he still might be, unfortunately.

As we learned from TJ Quinn of ESPN when the news broke on Tuesday night, MLB may be determined enough to throw the book at Braun and Rodriguez, in particular, to attempt to parse their offences into the tiniest of grains– and the implications that could have on a player like Melky are troubling.

“MLB to argue that A-Rod & Braun violated policy twice,” Quinn tweeted. “Once by dealing w Bosch, once when they lied to MLB about it. Players sure to fight.”

The original Outside The Lines piece elaborated:

MLB already has established precedent to suspend a player for two offenses in one shot: Minor league player Cesar Carrillo was hit with a 100-game suspension in March when he was confronted with Biogenesis documents containing his name and then denied having any connection to Bosch or the clinic.

However, because Carrillo was on a minor league contract and thus not a member of the MLB Players Association, he was not entitled to an appeal through arbitration. Major league players accused by MLB are expected to fight any suspension, and efforts to charge the players with multiple offenses would take that fight to another level. In the appeals process, players are allowed to confront witnesses and evidence in a courtroom-like procedure before an arbitration panel.

Could Melky still face suspension for covering up his connection to PEDs, in addition to his positive test? Are there other offences, by MLB’s definition, in the BioGenesis papers that he’s going to be hit with? There really aren’t good answers to those questions right now, but if we believe the league is going to attempt to punish Braun and Rodriguez for any and all offences– and I really think they might– any kind of cocksure attitude about Melky being in the clear seems misguided. And that’s especially since all of this is coming from sources who also told ESPN that Gio Gonzalez won’t be implicated because the substances he allegedly got from BioGenesis were legal, and who clearly didn’t specify that Cabrera, or any of the other players who’ve already served suspensions, were out of the woods.

And we therefore have to wonder about what we noticed in the BioGenesis records back in February, which was that Melky’s name appeared in a notebook labelled as being from 2009. The dates listed actually lined up with the 2011 pre-season, so maybe he wasn’t involved with the clinic as far back as it seemed– but there were more elaborate notes from 2011 on his file as well, and given that his suspension was for a 2012 positive test, and MLB’s apparent intention to parse out individual offences from the whole, I’ve got to think it’s at least possible that this isn’t over for him.

Asked about the double jeopardy issue in the spring, via a piece from Richard Griffin of the Toronto Star, players union head Michael Weiner explained:

“It’s a tough and complicated legal question,” Weiner said. “I think the commissioner’s office could take the position that if they had evidence of a separate violation, that conceivably they could seek additional discipline. We might challenge that.

“I will say this. The players’ association has an obligation to represent any player who’s subject to discipline. The players’ association is also a signatory to a joint drug agreement, and the players’ association also has an obligation, not only to the players who are subject to discipline, but the vast majority of players who want a clean game.”

In the same piece, published this week, in the wake of the Outside The Lines report, Griffin wonders, “So did Cabrera commit another, different, punishable infraction. Indications are that he may get away with just the 50 games already served, definitely with a mention in the final report, maybe with a further slap on the wrist and a stern finger wag. Cabrera already faces additional mandatory drug tests because of his previous failure.”

I don’t think I’m being too much of a total homer when I say I think that makes complete sense.

In a piece at Sportsnet, Shi Davidi tells us that Cabrera’s fate “hinges on what evidence Bosch provides, and whether he’s connected to a previously unknown doping skeleton in Cabrera’s closet. If his only information on the left-fielder is tied to what led to last summer’s ban – which is believed to have resulted from products he obtained from Biogenesis – he should be in the clear.”

For MLB, writes Jonah Keri of Grantland, pursuing a second suspension for Cabrera “could also become problematic.”

As [FanGraphs' Wendy] Thurm explains, unless authenticated and verified Biogenesis documents link a previously suspended player to use, possession, sale, or distribution of PEDs separate from the drugs that had triggered earlier positive tests, a second suspension could amount to a second punishment for the same, initial violation. If MLB were to adopt the A-Rod–and–Braun approach, it could seek both the PED-use penalty and the lying penalty against Cabrera, Colon, and Grandal. All three have already been suspended once, and two more suspensions would equal three, which, according to MLB’s drug policy, would trigger a lifetime ban. Since it’s not at all clear if Cabrera, Colon, and Grandal violated the league’s policy in an incident separate from the one for which they’ve already been nailed, there’s an absurd scenario by which they could be forever stripped of their ability to play in the majors as a result of, essentially, a single transgression.

Hopefully, though, Jeff Blair of the Globe and Mail is right, when he asserts that, for commissioner Bud Selig, this seems to be about dealing with the two that got away. Selig has outlasted and out-foxed his critics for the better part of the last 15 years, but turning what could be the biggest sports scandal in North American history into a plus is another matter entirely.”

Going after A-Rod and Braun I entirely get. Let’s just hope that, in some attempt to pursue action in an equal manner against all offenders, Melky doesn’t get caught up in this bullshit again. Or, at least, if he does, that suspension number two is off the books by 2014. Eh?

Comments (51)

  1. The whole thing seems like a desperate attempt by MLB to nail Braun and A-Rod with something, anything. They basically blackmailed this Bosch guy into giving up what he had, and from what’s been leaked so far, the evidence seems to hinge on this one guy whose motives have already been compromised. Any lawyer would love to take on MLB in that scenario.

    I keep thinking back to the Pete Rose witch-hunt. Was Pete associating with scumbags and degenerates? Yes. Was he betting on baseball? Probably. Was he betting on his own team? That one’s much harder to prove. But obviously someone told Pete that his problems would go away if he ‘confessed’, much like the wife saying to the husband, “It’ll be all right if you just say you did it.” And MLB was determined to nail him to the wall to prove baseball didn’t have a gambling problem. Now it’s 2013 and we’re back to the same old shit. Were these accused players associating with scumbags and degenerates? Probably. Were they juicing? Probably. But instead of establishing an air-tight case, MLB leaks stuff to the press in the hopes that public opinion will convict these guys.

    Now I dislike A-Rod as much as the next guy, but fuck MLB if they don’t have a case that would stand up in court. Fuck MLB if they’re violating their own confidentiality rules. And fuck MLB for making me feel any kind of sympathy for A-Rod.

    • A) Pete Rose was blacklisted looooong before he fessed up to betting. MLB ‘nailed’ him decades before he admitted what he did. The impact of steroids on sports is up for some debate, but the impact of gambling is not. It is a major, major issue because it is easy to get in the hole with the wrong people and gambling on your own sport is a slippery slope (see Sox, Black).

      B) I actually do have a problem with the way these players just lie, and lie so insistently. Braun swore ON HIS LIFE that nothing illegal had ever entered his system. Giambi expressed contrition, nothing bad happened to him and the league left him alone. When these guys lie like that they make a mockery of the MLB (not the sport, the league). I’d be pissed if I was Selig as well.

    • Pete Rose actually decided to sign a life time ban to stop the investigation.

      I think that investigation would have turned up more skeletons than most people can fit into their closet.

  2. By the end of it, these PED witch hunts are going to do far more damage than PED use ever did for the game.

    • Yep, they are working on destroying the league at the height of it’s profitability. Seems unreal but it’s happening.

    • This isn’t simply about the effects of PED use on ‘the game’ – it’s popularity and profitability. This is about protecting athletes from themselves (PED’s will shorten your lifespan and with the right amount of roid rage, the lives of others) and it’s also about protecting young (ie. high school) players who either don’t fully understand/respect the risks of PED use or who have PEDs pushed on them by parents (and/or others).

  3. Well MLB is MLB but if they had asked Melky about where he got his PEDs or who he was involved with and he lied about that then I suppose new evidence proving he lied could lead to further punishment. (I’d hope it would be a fine. A 100 game suspension would just be mean and put a cherry on top of this dumpster fire season)

  4. Amazing how guys who already have contracts worth tens of millions of dollars will still cheat.

    You can read both good and bad from that IMO. On the one hand it shows how truly prideful and competitive these guys are. On the other hand you could argue they’re greedy and obsessed.

    • It’s not just baseball players.
      There was a study done years ago, where they asked Olympic atheletes.I paraphrase.
      ” if you could take a stubstance that would give you a gold medal,that was undetectable,but would knock 5 years off your lifespan,would you take it?”
      The majority said yes.
      Mind blowing.

      • The study was even more powerful than that – the question they asked was, “If you could take a substance that would guarantee you a gold medal, but would kill you within 10 years, would you take it?” And yes, a large majority (>70%) said yes. And that’s for Olympic athletes, who don’t sign million-dollar contracts for their performance – which suggests it’s not just about to money.

        IMHO, It’s the incredibly powerful drive to be the absolute best at what they do. It’s like a version of OCD where they’ll literally do anything they can to help them reach their expectations, regardless of consequences. Single-minded pursuit of their goals without any regard for what could go wrong – the same thing that drives them to become elite athletes in the first place is what pushes them to go over that line, and take banned substances that could ruin their careers.

      • It’s almost as if elite athletes want to do something memorable!

  5. I wonder if potential HGH evidence would constitute a separate violation re Melky. Sounds likely according to Thurm.

    • If they do the additional suspension for potentially the same infraction, then add one on top of that for lying, mlb could potentially make a one time user banned for life. You would have to be incredibly confident that you were correct to do that to someone. Do you find it odd Pettit admits to using HGH and nothing comes of it, but a guy potentially using once could get a lifetime ban?

  6. Braun is a cheat, he just got off on a technicality

    • Proper evidence handling is never a ‘technicality’.

      • Yet there is no evidence that the sample went from negative to a positive based on any “handling” issue. While perhaps the improper “handling” of the specimen is enough to throw out the result (more for precedent it sets than for the result in this specific case), nobody on the planet with a clue actually believes Braun isnt guilty.

        • The only evidence that could do that would be a prior test from the same sample showing a different result and if they had already tested a sample there would have been no need for the second test.

          Improper handling is not a technicality, it’s a wholly legitimate reason to throw out the sample and absent the sample you can’t suspend Braun.

          • of course its a technicality…..a guy not being read his miranda rights and then getting off is a technicality….obtaining evidence without a warrant and the evidence getting thrown out is a technicality. technicalities are liegitimate reasons things get thrown out. what the real technicality here is people’s definition of a technicality.

            if you want to go the route of did he or did he not juice..the anwer is 100 percent yes.

  7. IMHO.
    I still would think that Beeston,being the former President and COO of MLB and #2 man in baseball,woulda checked all this out with his friend Zelig and any other confidants at MLB head office.After the embarrassment of the Yunel incident,you know Rogers is sensitive to negative plublicity and they would need as much assurance as possible before proceeding with a contract for Melky.
    Anything’s possible and things change,but I gotta think things were checked out,risk wise,,especially with the hype and investment in the team for 2013.

  8. Thus far, federal prosecutors have worked on the principle of trying to ‘get’ people who were steroid users, and the end result has been millions of dollars wasted for almost no result. I have a feeling this might end up the same way. ‘Justice’ used for settling scores is not the best way to handle anything.

    One thing we know – the players have the money to defend themselves, with or without the Players’ Association (which is in the contradictory position of representing the accused and some of the people who want the accused convicted). Anything less than the same standards of evidence being used by MLB as would be used in a federal court should result in players rightfully kicking up one hell of a stink.

  9. Honest question here that probably doesn’t have an answer yet. If ARod and Braun are looking at two violations at once, shouldn’t that mean a 150 game ban (50+100). If not, would Melky serving another 100 games mean he’d been punished 50 more games than the others for the same offence?

    My head hurts.

    • Now picture counter suits by players whose names MLB brought into this who were proven not guilty. What if players could prove without wrongful suspensions they would have made enormously more money in their careers, and sued the mlb for it.

    • I thought the same thing. 50+100 would be more appropriate than 100 games.

      On the other hand, this is all insane. I’m much more upset at players who drink and drive. It also pisses me off that guys like Mantle are loved, even though he played drunk & hungover, depriving fans of his optimal performance. Guys like Melky are doing everything possible to enhance their performance & therefore fan experiences. Give me more steroids, 110 mph pitches & 700 foot homeruns. I

  10. When Melky first got notice of his failed drug test last year, he concocted a story of having purchased tainted supplements over the internet. He even went through the trouble of having someone create a bogus website to support his story, which he then passed along to MLB investigators. Of course, all of that was proven to be entirely false.

    If there was ever a case where MLB might try to increase the standard penalty based upon the player lying to investigators or otherwise covering up his use of PED’s, THAT was it. But MLB didn’t do anything about it. They just gave him the normal 50 game suspension for a first offense. To my mind, that speaks volumes about how much confidence MLB has in their ability to levy any punishment greater than the standard 50-game suspension for a first time offense even in circumstances where the player is shown to have lied to investigators to cover up his involvement.

  11. Wouldn’t every visit to Bosch be a separate violation? It would be pretty easy to get to 3 if you count that way.

  12. If Selig is so determined to get Braun, his own player, why woukdnt he have traded him? I mean 1) get something for him but 2) isnt it hypocritical to keep him and take advantage of his skills for your team while simultainiously being against cheaters? Because, correct me if I’m wrong, but Selig owns the Brewers still, right?

  13. meh, who cares anymore. To me all they had to do was build bigger ballparks and make more money.

  14. Dont you guys understand how lawyers work? throw every charge at everybody and then drop almost everyone from the suit save for a couple. melkey is fine

  15. The “Related Post” for this is amazing

  16. You got when you said….

    “Going after A-Rod and Braun I entirely get. Let’s just hope that, in some attempt to pursue action in an equal manner against all offenders, Melky doesn’t get caught up in this bullshit again.”

    In the case of A-Rod, it’s about money. The NYY owe him an ungodly amount of money and I’m sure they are encouraging MLB to take this as far as they can in hope that he either retires or that they can get some salary relief. Yes it’s that black and white.

    As for Braun, well, that’s just a preservation of respect for the MLB office. I’m certain they want the final say on the matter considering how silly they looked the last time.

    It looks like Melky is caught in a net designed for big fish. He did the right things last year, all the mia culpas, not being in the playoffs, and agreeing not to be the batting champ, that could help him out in what will be a very discretionary decision by MLB.

    That said, wake me when there is actual action on the matter.

    • There is no chance of A-Rod retiring just because he gets a 100 game suspension. Even if he didn’t appeal the suspension, he would still be back before this season was over, probably September.
      The Yankees are still obliged to pay him the remainder of his ridiculous contract, no getting away from it. Right?

      Can the Yankees legal staff somehow say because he lied to MLB and to the Yankees, can they void his contract? I doubt it.

  17. Just for clarity, is this investigation being done by MLB or by the Feds? I thought it was being done by MLB who are then using there own arbitrators. I do not think that MLB has to follow the same rules of evidence or of double jeopardy that a federal investigation does. Unless Congress is threatening MLB with revoking their anti-trust exemption, I do not see any reason why MLB would give a god damn about double jeopardy. So long as the arbitrators see it a certain way, the players are fucked with little recourse in the actual court system.

    • The MLB could care less about double jeopardy, but the players union would surely fight it because it starts a huge precedent.

      • This is true, but to fight it you have to have a law or a right to point to. MLB doesn’t necessarily give the players any rights or have succinct rules on double jeopardy so what would MLB be violating?

        • umm. yes they do ..its called the collective bargaining agreement. it is a legal entity and double jeopardy violates it. now the question is…how narrowly do they define double jeopardy.

          mlb has turned a dirtbag who tried to extort money into a key witness….he has every reason to lie and make up shit in order to save himself.

          this will not end well for mlb

  18. Nail em to the cross, Selig, especially Braun. I hated him getting off in the first place, that was some bullshit.

    I love Melky, and believe he served his punishment like he should have, and he did it with an aura of contrition. If we find he again participated in PEDs then that’s a different story, but in my opninion that book is closed. We shall see.

  19. Not to only be contrarian and as much as I like Melky, I do not see why he would be immune from further punishment. If someone is in jail and evidence arises that they committed another crime previous to the one for which they are incarcerated, they are still likely to be charged and tried. I do not see why his having server a suspension for one use would protect him from previous infractions of the drug policy.

  20. Double jeopardy is like being double taxed in Canada, it’s illegal… But there’s ways around it, for example u work and the government taxes your check, then u spend your money only to be taxed again. You get caught doping you get suspended, they find u lied and they’ll suspend you again for the same infraction

  21. Does no one here understand that no one will be serving a suspension? Even the MLB knows it. Do you honestly think the MLB wants any current star sitting for any length of time thus decreasing profits? During the appeals process this Bosch jack off will be deemed non credible and every last one of these guys will win their appeal (braun/arod/melky included). This is about MLB jerking off some politicians in washington to make it look like they care. This is also the reason Braun was able to get off the first time. It’s all a show. Despite what most people have been brainwashed into believing MLB actually wants their players using as much shit as possible apd have created a ‘ drug policy ‘ that makes it so that no current star (some latinos excluded i suppose) will be missing any time. Open your eyes people. And as a jays fan I would worry very little about Melky missing any more time unless he actually fails another test.

  22. If Melky has to get hit again let it be now. The season’s is basically lost so it won’t hurt too much and he can be back by 2014.

    By the way, double jeopardy was abolished a few years ago in the UK and I am prepared to bet it will go down here as well. The rationale was that too often perps had been getting off and then had been proved guilty by continuing advances in forensic science.

  23. Interesting… from Nolo’s Plain-English Law Dictionary

    “A rule from the Fifth Amendment to the U S Constitution that prohibits a criminal defendant from being twice made to stand trial for the same offense. A defendant is put “in jeopardy” once the jury is sworn. If the prosecutor moves to dismiss the case after that, the defendant cannot be retried.”

    So it’s a right derived from the US constitution and pertains to criminal law. We’re talking here about the MLB/MLBPA CBA and unless there’s a clause in there that prohibits MLB from suspending a player for the same infraction twice, they can do it.

  24. I’m all for MLB being tough on PEDs, but it just feels arbitrary and like they are making it up as they go along with this BioGenesis scandal.

    Seems to me that once you’ve been punished once, you ought to have a clean slate and only be suspended for offences that happened since your suspension. Melky Cabrera has served his time for past PED use, so why suspend him again?

    And while I have no love for Alex Rodriguez, don’t see how he can get second-offense-type suspension when he’s never been found guilty a first time. I don’t care how many times he cheated in the past, if he’s caught now it should be his first offense.

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