No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;
– Fourteenth Amendment, United States Constitution
Never let it be questioned the power, force and ultimately, the effect that the powers that be of MLB can wield. In the absence of any evidence other than that of a drug dealer (MLB’s words, not mine) MLB has ended the season of Ryan Braun and Everth Cabrera‘s season is reported to effectively be over as of this weekend. Cabrera’s 50-game suspension was first reported by Jon Heyman and later it was reported by Bernie Wilson via Twitter that it would occur this weekend.
It appears unlikely at this point that Padres catcher Yasmani Grandal or Bartolo Colon of Oakland will serve any time, as they have already been suspended previously. Per Heyman’s article it appears that most players are cutting deals with MLB. In Braun’s case, he forfeits $3.5 million though will be allowed to resume his baseball career (and sizeable Milwaukee contract that runs through 2020) in 2014. Braun agreed not to appeal his suspension, a step somewhat unprecedented in modern sports. There are now the reports that Alex Rodriguez will face perhaps a tougher penalty, potentially a lifetime ban.
Regarding Alex Rodriguez, it was reported in the NY Daily News that:
If Rodriguez indicates that he will appeal his looming suspension to stay on the field and protect his contract, commissioner Bud Selig is prepared to invoke his rarely used right to suspend a player to preserve the integrity of the game.
Read that quote again because it’s important. If Alex Rodriguez chooses to appeal his suspension, MLB is prepared to increase his penalty to perhaps a lifetime ban based on a vaguely written portion of the CBA. That portion, Article XI (A)(1)(B), empowers the Commissioner to render punishment if either the integrity of the game is threatened or the public trust in baseball has been broken. It does not define what that means or what actions that may cover. The last time it was implemented was 2000 when MLB suspended John Rocker. That was a 28-game suspension for inflammatory language (later reduced after appeal). Could it cover a simple appeal of a suspension? Should it?
Article XII of the CBA provides some insight. This article, governing discipline, notes:
a Player may be subjected to disciplinary action for just cause by his Club, the Senior Vice President, Standards and On-Field Operations or the Commissioner. Therefore, in Grievances regarding discipline, the issue to be resolved shall be whether there has been just cause for the penalty imposed.
Ryan Braun accepted a 50-game penalty without appeal. It stands to reason that similar threats that are being made to Alex Rodriguez were made to him and are being made to other players, including Cabrera. MLB is thus using a catch-all provision of the CBA to invoke absolute power over players while simultaneously ignoring the requirement of just cause. Because under even the most plain language reading of the term “just cause” no one could argue that simply exercising a right provided in the CBA (appeal) would arise to “just cause” such that the commissioner could act in such a way.
The Major League Baseball Joint Drug Prevention and Treatment Program is a separate document incorporated into the CBA. For purposes of this post it requires a positive test to be disciplined (it also covers substance abuse and treatment programs which are not germane to this topic). At the end of the section on discipline it provides a bit of a catch-all provision:
A Player may be subject to disciplinary action for just cause…for any Player violation of Section 2 above not referenced in Section 7.A-7.F
I’ve linked to the Joint Drug Prevention document above so you can see for yourself that 7.A-7.F do not mention being associated with a facility like Biogenesis. Maybe it should but it doesn’t. To date there has been no report that Everth Cabrera has ever failed a drug test. There are, to our knowledge, no witnesses that have seen him take a banned substance. There is simply his name on a list and the word of a drug dealer (more on him in a bit). Yet, MLB is in such a position that they can exert a tremendous amount of pressure to force players to forego their due process rights for fear that 50 games will become 100 games or a season or a lifetime. Never mind that to do so requires MLB to take an extremely creative reading of the CBA that they are party to.
The question left is this: what is the evidence that MLB has against these players such that suspensions can be handed out in line with the CBA?
In the case of Everth Cabrera (and others), there is no failed drug test to rely on if you are MLB. So what is the evidence? What is the “just cause?”
The evidence can be found in the lawsuit that MLB has filed against the Miami “anti-aging” clinic Biogenesis. The lawsuit is accusing Biogenesis of interfering with player contracts by supplying the players with PEDs in violation of the CBA and Joint Drug Program. Tony Bosch, who would have been a defendant in such a lawsuit as the founder of Biogenesis, is in fact a plaintiff. That’s right, the founder of a company accused of supplying MLB players with illegal drugs is now helping implicate his own company in a lawsuit.
Tony Bosch was, by all accounts, a crook. He had no formal medical degree though did claim to have a degree from the Central American Health Sciences University in Belize. He represented himself as a doctor though there is no indication he was one. In March, MLB sued Tony Bosch who at first maintained his innocence. That lawsuit has now been dismissed in return for Bosch’s assistance in MLB’s lawsuit vs Biogenesis.
It is Tony Bosch that is supplying MLB with their just cause. His business records and documents, detailing players via nicknames and his statements that he provided MLB players with PEDs. It is functionally equivalent to a jailhouse snitch.
On Monday a Miami-Dade Circuit Court Judge denied a petition to dismiss MLB’s case, allowing the case to move forward. While this in and of itself is not particularly noteworthy, it does now provide MLB with the opportunity to depose witnesses under oath. That is significant. Because there may come a time in the future that MLB does have their just cause to levy suspensions. After depositions are taken and statements are provided under oath. (It’s now been reported that the Federal Government is looking at going after Tony Bosch, despite any protection he believes MLB can provide him. Biogenesis’ former marketing director, Porter Fischer, is scheduled to be interviewed by the U.S. Attorney’s office. You’ll perhaps know Fischer’s name as the person who MLB bought, that’s right, bought, the Biogenesis records in which MLB players names appear which is the basis for MLB’s current actions.)
After documents and vials and any number of items are obtained and a civil judgement or settlement exist, then perhaps MLB will have just cause.
But they don’t have it today.
As it stands today, MLB has pressured players such as Ryan Braun and Alex Rodriguez and Everth Cabrera to accept suspension deals based on a threat that far worse punishments were coming if they utilized basic due process rights.
MLB pressured Tony Bosch with a lawsuit that he could not afford to defend. He now becomes the primary provider of facts for MLB.
And MLB will suspend multiple players, including All-Stars, for a sizeable part of their season and paycheck, based on nothing more than names on a piece of paper and the word of a drug dealer.
MLB is not a criminal courtroom and MLB is not a “state” as that is defined for Constitutional protection. So the MLB players don’t have due process rights except for what is provided in the CBA. But ethically, the players’ due process rights are being violated (there is perhaps an argument that the players would have a substantive due process claim but that’s a lot of legal jargon that I won’t bore you with). They have been punished based on circumstantial evidence, had their livelihood taken away without being afforded a proper hearing, and have been strong-armed into giving up their appeal rights.
Maybe all of these players are guilty. Maybe once those depositions take place the evidence will be overwhelming. But the ends do not justify the means. Process matters. And the manner in which MLB has obtained their “evidence” and utilized that evidence to punish players was done in such an unethical way that it renders their attempts at the moral high ground as comical. MLB has circumvented their own rules regarding discipline, circumvented their own rules regarding the standard of evidence required, and mounted what equates to a witch hunt.
So who is really more guilty here? The players for using PEDs (allegedly) or MLB who took the opinion of “by any means necessary” to catch and punish those players?