MLBPA head Michael Weiner says 50-game suspensions may not apply to non-analytical positives. Length of suspension open for discussion.
— Jeff Passan (@JeffPassan) July 16, 2013
Weiner says suspensions subject to negotiation with MLB. With no agreement, unlikely players miss time this season.
— Danny Knobler (@DannyKnoblerCBS) July 16, 2013
For the latest news on the Biogenesis front, Getting Blanked re-enlisted the help of Fraser MacKinnon Blair (@fmblair on Twitter) to help us wade through the latest revelations and what they could mean for the players involved.
During his annual All-Star game news conference, Major League Baseball Player’s Association chief Michael Weiner provided some updates regarding Major League Baseball’s ongoing investigation into a number of players connected to Anthony Bosch and the Biogenesis clinic.
Weiner passed on a couple of interesting points regarding the nature of the (likely) forthcoming suspensions in connection to the Biogenesis investigation.
Does this change anything related to the enforcement of the Joint Drug Policy and Prevention Program?
I don’t think it does. The offences in question under the Drug Program are clearly governed by the 50/100/life punishment scale.
Section 7A of the Drug Program states:
“A Player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the use or possession of the Performance Enhancing Substance, will be subject to the discipline set forth below” (50/100/life).
This section creates two types of offences. The first is for a positive test and the second is for what’s being referred to as a ‘non-analytical positive.’ The key difference between the first and the second is that there is no positive test for a non-analytical positive infraction. Instead, MLB relies on other evidence to show that the player used or possessed a banned substance. In this case, MLB will rely on the records that it obtained from Anthony Bosch as evidence that certain players used or possessed a banned substance.
Stated simply, regardless of whether a player tests positive or otherwise uses or possesses a Performance Enhancing Substance, the player is subject to the graduated punishment scale. That scale is not open for negotiation.
Then what is Weiner talking about?
The original ESPN piece that reported that MLB was intent on punishing players for violations of the Drug Program and for lying to the Biogenesis investigators. The Drug Program doesn’t create an offence for lying to MLB, so MLB will need a different source of authority to punish players for not telling the truth.
Under Article 12 of the Collective Bargaining Agreement, the Commissioner is empowered to impose discipline with “just cause” for conduct that is “materially detrimental or materially prejudicial to the best interests of Baseball.” On Tuesday, Wendy Thurm called this the “Nuclear Option.” Article 12 is so broadly worded that likely encompasses lying during the course of the Biogenesis investigation.
What’s more is that unlike under the Drug Program or any other provision of the CBA, Article 11 makes it clear that a Player cannot file a grievance to a neutral arbitrator to challenge the Commissioner’s exercise of his power under Article 12. Instead, the CBA states that the Player may only appeal the decision of the Commissioner to…the Commissioner!
If the Commissioner levies the punishment, and he gets to decide the appeal, how does the Union get to ‘negotiate’ the punishment?
Nothing that I’ve come across technically entitles the Union to a seat at the negotiating table. However, the CBA does provide the Union with a big card in this instance.
Article 11(A)(1)(b) of the CBA deals with the process of appealing a decision of the Commissioner made under Article 12 (Nuclear Option). The bottom of the provision is key to this discussion. It states the following:
The Association may reopen this Agreement, with reference solely to Section A(1)(b) and Section C of this Article, upon the giving of 10 days’ written notice at any time, based upon experience under the aforesaid Sections which, in its opinion, is unsatisfactory.
In plain(er) language, this means that the MLBPA, in its sole discretion, can force MLB to re-negotiate the provision of the CBA that deals with how the Commissioner handles an appeal from an Article 12 ruling. This puts a serious check on the ability of the Commissioner to run wild with how he exercises his wide power to discipline a player.
The upshot for the Union is that it has the power to force MLB to renegotiate the scope of the Commissioner’s Article 12/Nuclear Option power if it doesn’t like how it’s being exercised. True, this technically doesn’t give the Union a right to negotiate the punishments of the players who lied to MLB. However, it’s a powerful ace in the hole that since it puts pressure on the Commissioner to impose sanctions that are agreeable to the MLBPA.
How long will the players who lied be suspended for?
No clue at this point. There isn’t a relevant precedent for the Commissioner’s exercise of Article 12. Although, as Craig Calcaterra pointed out last week, if Melky Cabrera’s fake website didn’t justify any discipline, how can MLB suspend Ryan Braun for 100 games?
I still think that a positive test or a finding of use or possession of a Performance Enhancing Substance will be dealt with under the Drug Program and violators will be punished according to the 50/100/life scale. Weiner’s comments really just shed some light on how the matter of players lying to MLB will be dealt with.
If MLB is going to suspend certain players for lying to investigators, it will have to do so outside of the Drug Program but within the framework of the CBA or a letter agreement with the MLBPA. Article 12 of the CBA (the Nuclear Option) allows the Commissioner to discipline a player for conduct that is “materially detrimental or materially prejudicial to the best interests of Baseball” provided that there is just cause for the punishment. If punishment is invoked under Article 12, the Player can’t file a grievance and may only appeal the decision back to the Commissioner.
However, if the MLBPA doesn’t like how the Commissioner handles the appeal, it can force MLB to re-negotiate that the Commissioner’s broad powers. This is a major check on the Commissioner’s power to punish under Article 12 because a re-negotiation would throw considerable uncertainty into MLB’s power structure.
In any case, a re-negotiation is likely something that the commissioner wants to avoid. By extension, Bud Selig is likely willing to listen to present suspension options that are agreeable to the Union for the players who have lied to MLB.
Note: The contents of this article are not to be construed as legal advice and should only be used for informational purposes. The author of this article is a recent graduate of law school, but is not a lawyer and is not competent to give legal advice.