Baseball 2006Last week, ESPN’s Outside The Lines reported that Major League Baseball would seek to suspend 20 players connected to Biogenesis of America, a former Miami-area anti-aging clinic founded by Anthony Bosch that was implicated in providing banned substances to professional athletes in January by a whistle-blowing former employee. After a lawsuit was filed against him by MLB, Bosch reached an agreement – according to the OTL report – to cooperate with the league’s investigation into the matter, potentially offering evidence necessary to suspend several players.

In exchange for Bosch’s cooperation, MLB will not only drop the lawsuit it filed against Bosch in March, but also protect him from liability for any other legal action that might arise from his cooperation, provide security for him and speak on his behalf with any law enforcement agency that seeks to bring charges against him in the future.

This represents the very first time in professional sports that a league has investigated the past use of banned substances by multiple high-profile players for punitive purposes. And like any first time, it carries with it a lot of nuance, intricacies and questions that are likely to be ignored by our initial reaction to the possibilities of wide spread suspensions.

With a bit of distance from the story breaking, let’s go over some of the larger issues pertaining to the investigation and potential punishment, and try to gain an understanding of – forgive me for this – what it all means.

Why The Pursuit?

Why does baseball so doggedly pursue users of banned substances, while other professional sports leagues in North America seem to put forth the most nominal effort imaginable? I think the most simple answer is Barry Bonds.

No other sport – outside of maybe cycling – is as associated with performance enhancers as baseball. I don’t believe it’s a coincidence that there isn’t another sport – again other than cycling – that has had a Barry Bonds type athlete. He was a dominant individual player who was publicly vilified based on allegations of performance enhancing drug use.

His rise correlated with baseball’s. The league’s mid-nineties, post-labor dispute renaissance owes a lot to the league-wide increase in power numbers that Bonds’ presumed use of banned substance has come to represent. More home runs made the game more popular. But in hindsight, the cause of more home runs has been widely presumed to have been accomplished through morally and legally questionable means. After every single level of baseball hierarchy turned a blind eye to allegations of PED use, baseball – in the midst of enjoying the renewed interest of the American public – then went about protecting its improved status through optics. MLB has gone out of its way to be seen pursuing the very athletes it depended on for its increased prominence out of fear that they would cause the integrity of its product to be questioned through the illicit use of banned substances.

Public Perception Trumps Health Of Players

It’s important to remember that the great majority of the public has a much healthier relationship with sports than you – someone who has sought out a semi-obscure (in comparison to the more mainstream) baseball blog in Canada – and I – a person writing for that semi-obscure baseball blog in Canada. They have a casual, passing interest in the sport. They understand that good teams win the world series. Bad teams finish last. They like to keep the game on in the background, complain about closers blowing saves and refer to a player’s batting average and RBI as evidence of his value or lack thereof.

They also understand steroids to be bad because this is what baseball, following the lead of amateur athletics, has decided to vilify for the reasons described above. This, in itself, is probably a good decision. There are many dangers associated with using the majority of the substances that MLB has decided to ban from its sport. Unfortunately, baseball has presented the issue as though its a moral quandary and not a health concern. To the great many casual fans of the sport, baseball players who use performance enhancers aren’t thought to be athletes foolishly risking their health for improved statistics and corresponding salaries. They’re called cheaters.

I imagine that this is because the public has difficulty feeling sympathy for the selection of people we’ve raised up as heroes for their athletic abilities, and who, by and large, earn a lot more money than us and are celebrated by a great many more than we are. It’s difficult for us to relate to millionaire athletes outside of those moments in which we vicariously live through them on the field. This reality coupled with the league’s interest in protecting the all-important integrity of its results leads to public perception mattering a whole lot more than the health of its players.

This is seen rather evidently in the league’s insistence that Human Growth Hormone is a performance enhancing substance that needs to be prohibited despite countless research papers suggesting otherwise. Unfortunately, HGH is a buzz term that was associated with the Barry Bonds regiment of substances that correlated with his improved power numbers and other instances of drug use in sports. It’s become a popular scape goat, for which the benefits of its use are often exaggerated by those peddling it.

Who Is Anthony Bosch?

Anthony Bosch, as the founder of Biogenesis of America, is just such a peddler. He ran what’s commonly referred to as an “anti-aging” clinic that offered its clients chemical assistance in their pursuit of weight loss, physical fitness, and general rejuvenation. He can be seen as a modern day salesman/cartographer selling maps to a fictional Fountain Of Youth to wealthy customers.

With reports that Bosch, who does not have a medical degree, would walk around his clinic in a lab coat and a name tag that suggested otherwise, he was essentially running a scam in which the benefits of chemicals were exaggerated, just as the consequences were ignored. It was also one that happened to provide such chemicals to several Major League Baseball players.

This, in and of itself, is not illegal. There are few laws governing “anti-aging” clinics in Florida. Unfortunately for Bosch, there are laws against non-doctors obtaining prescription drugs for their clients and selling these substances to them for profit. The legal ramifications for this – which remain under investigation – is Bosch’s main concern, far beyond the names comprising his clientele list.

A Specious Lawsuit As A Cooperative Prompt

In March, MLB filed a lawsuit against Bosch claiming that Biogenesis had caused the league to suffer monetary and other damages, including harm to its reputation by its inducing players to purchase, use and distribute performance enhancing substances. As Wendy Thurm of Fangraphs was among the first to suggest, the action was likely filed as a means of obtaining documents from the clinic that MLB had previously been unable to acquire from the media outlets (Miami New Times, ESPN and the New York Times) that first revealed the link between Biogenesis and baseball players.

According to a New York Times report, MLB went about purchasing documents from several former Biogenesis employees. However, the reports are next to meaningless without Bosch’s corroboration. And so, facing MLB’s lawsuit and an investigation into his operation by the Florida Attorney General’s Office via the Florida Department of Health, Bosch has agreed to assist the league in making a case against the players. Beyond immunity and the dismissal of its lawsuit, Bosch was presumably eager to receive a promise from MLB to speak on his behalf to any authority that decides to bring charges against him in the future, as – according to the ESPN report – for some time this was the only remaining negotiating point keeping a deal from being made.

Who Is Being Investigated?

Alex Rodriguez, Ryan Braun, Melky Cabrera, Nelson Cruz, Bartolo Colon, Yasmani Grandal, Jhonny Peralta, Everth Cabrera, Francisco Cervelli, Jesus Montero, Fernando Martinez, Fautino de los Santos, Jordan Norberto and Cesar Puello were all named by Outside The Lines as players that the league was investigating. It’s expected that with Bosch’s assistance, more names will be added to the list, including players who attached to a code name in several of the documents.

It’s also worth mentioning that Gio Gonzalez, a player whose name was connected to the clinic, is likely to be exonerated because the substances he’s on record as purchasing from Biogenesis were legal.

The Joint Drug Agreement

In order to suspend any or all of the players under investigation, though, Major League Baseball would be meting out punishment without the evidence provided by a positive drug test. This is allowed by the Joint Drug Agreement between MLB and the MLBPA, which suggests that in addition to testing positive for a banned substance, players can face the same penalty for “the use or possession of a Performance Enhancing Substance” and that a player may be “subjected to disciplinary action for just cause by the Commissioner.” Despite an entire section being dedicated to challenging a positive drug test, there’s no definition in the document pertaining to the burden of proof for this type of violation.

This is why Bosch’s participation is so important. It verifies the authenticity of the documents that the league purchased in a way that the league – if (once) it chooses to levy punishments – believes is viable. But at what cost?

Would Suspensions Stick?

While the burden of proof is ambiguous for suspensions that come down for reasons other than a positive test, the Joint Drug Agreement does lay out a specific appeal process that will almost certainly be used by the Players Association. Presumably, the MLBPA could also challenge MLB’s authority – as laid out in the Joint Drug Agreement – to punish the accused users in court, which would be an entirely messy affair.

No matter what, it’s difficult to believe that any active outcome from the investigation on MLB’s part wouldn’t be challenged by the player’s association, and so the league has to be prepared in terms of both optics and legality to have an airtight case if they’re going to pursue punishment. Potentially making this extremely difficult is the reputation of Anthony Bosch. By depending on his assistance for their investigation, the league is attaching its motivation – which is already questionable – to someone for whom circumstances have caused his own best interests to be aligned with the league’s. The fact that MLB, only months prior to their partnership, was dismissing Bosch as a charlatan, doesn’t stand to help public perception.

The OTL report suggested that MLB might pursue 100 game suspensions – 50 games for use of banned substances and 50 games for lying about their use – for Ryan Braun and Alex Rodriguez. Any arbitration panel that hears an appeal would not have the authority to “reduce the discipline.” They can only decide whether the punishment was supported by just cause. It’s a yes or no scenario.

Double Jeopardy

The giant hot mess gets even sweatier when you consider that Melky Cabrera, Bartolo Colon and Yasmani Grandal have all already served suspensions for violations of the league’s drug policy in the last year. The Joint Drug Agreement specifically mentions three important rules pertaining to this: 1) “Players shall not be subjected to multiple disciplines as a result of the same use of a Prohibited Substance;” 2) “A player will not be disciplined for a second or subsequent violation involving a Prohibited Substance that occurred prior to the time that the player received actual notice of his first positive test result or non-analytical positive for the same Prohibited Substance;” and 3) If multiple banned substances are found in a test, the player will only be punished with the “longer applicable suspension.

In order to successfully punish Cabrera, Colon and Grandal, the league would have to prove that they used substances for which they didn’t already test positive. If this is proven, it would represent a second violation for all three players, meaning that they would each face 100-game suspensions. Of course, an entirely different level of appeals would exist for such a condemnation that might prove even messier than the others.

Confidentiality

According to the Joint Drug Agreement:

Any and all information relating to a Player’s involvement in the Program, including, but not limited to, the fact or the results of any Prohibited Substance testing to which the Player may be subject, and any discipline imposed upon the Player by the Commissioner’s Office shall remain strictly confidential.

The “not limited to” part of the excerpt is especially important because the information leaked by MLB to ESPN wasn’t about testing or even discipline that’s going to be imposed. It was about an investigation and the discipline that might result. Even though it doesn’t apply to the examples used in the document, it’s enough to justify this response from Alex Rodriguez, presumably referring to the section on Confidentiality in the Joint Drug Agreement:

Myself and others are being mentioned in a media report before the process is even concluded. I would hope this thing would follow the guidelines of our Basic Agreement. I will monitor the situation and comment when appropriate.

And it’s yet another part of the items that are likely to be brought up in appeal if things ever go that far.

Conclusion

And that’s just it: Will things ever go that far?

I posited at the beginning of this piece that Major League’s Baseball persecution of banned substance users is largely for the sake of public perception. This theory stands to be put to the test through the latest developments in the Biogenesis case.

It appears from the outset that pursuing punishment against these players will get very messy in terms of appeals and possibly through legal action outside the terms set forth in the collective bargaining agreement between the league and the players association. The resulting mess would seem to cause more damage to the perception of the league than avoiding the pursuit all together.

It’s an interesting quandary that baseball has seemingly created for itself, but maybe the real predicament wasn’t made by MLB when it appeared to pursue this case against its players. Maybe baseball’s bind was implemented earlier, by the reports in January that Major League Baseball players were using Biogenesis to receive treatments that utilized banned substances. MLB couldn’t be seen acting idly to suspicions of PED use, but pursuing punishments against the accused players was bound to result in all of the problems previously mentioned.

It might be better to be seen pursuing punishments of potential offenders rather than actually doing so. Such a perception could easily be created with a leak that informs the public mainly of intentions and almost not at all about actions. This way, baseball can be seen to have the desire to be proactively fighting the morally reprehensible form of cheating that is PED use, while allowing analysis of the situation to do the job for them in shaping the pursuit of discipline as an onerous task that isn’t likely to succeed.

Apologies for the tinfoil hat thinking, but it’s hard to reconcile baseball’s past perception preoccupation with its latest reported intentions. By attempting to suspend the players mentioned in Biogenesis documents, the sport’s integrity stands to take a greater beating through a dragged out process that pits the league versus its players than if it was to take a public stand against what this selection of players is presumed to have done while not actually participating in a bound to be disastrous challenge of it.

I’m not sure if there’s a clear alternative. The Commissioner’s Office seems too smart to willingly jump into dangerous territory. Either the evidence against the players it hopes to discipline is so overwhelming as to both leave no doubt in the minds of the public and create an air-tight case in the minds of potential arbitrators, or I’m entirely wrong about MLB’s interest in punishing PED-users being optics-based. Maybe I’m describing the limits of my own imagination, but I find it difficult to understand a scenario in which the case against these players can possibly be that convincing.

We all want a game that’s based on the talent of exceptional athletes, but we also want a game that accomplishes this while protecting those athletes from being punished unfairly according to the agreement that governs their involvement. While it may seem as though they’re adversaries right now, I think even Major League Baseball wants this – or, at least it doesn’t want to be seen struggling against it.