Monday, August 5, 2013

Se ha dado cuenta de que todos los jugadores de beisbol suspendido eran Latinos?

This title translates into "Did you notice that all the suspended baseball players were Latino?"

Today was what I would call a conflicted day in Major League Baseball.  A dozen MLB jugadores accepted their punishment without any appeals. One jugador, however, has said he would appeal his 211 game suspension and his name is Alexander Emmanuel Rodriguez.

The nation's sports reporters have talked endlessly about Mr. Rodriguez, but none so far have said anything about the jugadores being all Latinos. I am not being politically incorrect in noticing this fact. Rather, my curiosity is more of . . ."how are all these players tied together?"

I am fascinated by how this happened? Was one player the one who knew every other player on a close enough level to not only tell them about the Biogenesis clinic, but also trust them enough to risk their career by telling them? How did it progress from the very first athlete who decided to use performance enhancing drugs from the Biogenesis clinic? How did the second guy become a Biogenesis client and then the next one and so on? How did this expand to a group of jugadores?

A-Rod was born in New York. He moved with his parents to the Dominican Republic when he was four years old. Later when he was in the fifth grade, his parents had split and Alex moved with his mom to Miami. He would win the state baseball championship for his high school and of course, move on to be one of the best baseball jugadores around.

He lied to Katie Couric in an interview about using PED's, then later admitted to lying about his use. He claimed to have only used then from 2001 - 2003. Which brings us to today.

I have in my Google Drive a copy of the Joint Drug and Enforcement Program between Major League Baseball and the Major League Baseball Players Association. After a review, I question whether the MLB Commisioner's office has a case based on blood samples, or based on witness testimony. The Joint Drug Agreement or JDA talks about blood tests and urine analyses. Was there a blood test that Mr. Rodriguez failed? If not, then how can he be suspended for 211 games as a result?

The JDA says clearly 50 games for a first offense, 100 for a second offense and lifetime ban for a third offense. Although Alex publicly admitted prior steroid use, the MLB Commissioner's office never suspended him for the prior use. Yet now they want to not only jump over the 50 game and 100 game suspensions, but impose a 211 game suspension? Not only does this seem kind of screwy, but where is the failed blood test?

Further, in the JDA there is a confidentiality clause that applies to all people involved. This confidentiality clause was not only violated in Mr. Rodriguez's case, but also the other player's confidentiality was brutally violated. There were a lot of people talking well before the final punishment was handed down. In fact so much so that everyone knew the result, even me, in advance.

Here is what I see from a legal perspective. The JDA shows rampant violations from all sides. If the Commissioner's office does not like the fact that they did not previously suspend A-Rod, but now feel "justified" in the best interest of baseball, then too bad. That was their mistake. They had a failed blood test in 2003, but that was before the JDA went into effect. Whether they like it or not, that doesn't matter. The JDA was agreed to by the Commissioner's office and doesn't expire until 2016.

Secondarily, the JDA says that a first offense is 50 games. Like it or not, this is A-Rod's first offense. The Commissioner's office doesn't have a clause in the JDA that gives them the authority to impose a penalty of 211 games. My detractors will say that they gave Ryan Braun a 65 game suspension and that number was not in the JDA either. However, the critical difference is that Ryan Braun did not appeal his penalty. As a result, the Commissioner's office got away with a clear violation of the JDA. 

The other critical legal issue is where is the blood sample that was administered according to the JDA procedures? This is not a JDA blood process administered case. Instead, this is a case where a clinic operator at Biogenesis was threatened with legal action if he did not cooperate with the Commissioner's office. It doesn't matter whether this guy said, "Yes, I personally injected and supplied A-Rod with banned substances."  It also doesn't matter if he claims to have given him a boatload of these drugs. I would only have to remind you of the guy who claimed he injected Roger Clemens, but to no avail as Clemens was found not guilty of lying to Congress. It doesn't matter that you or I do not believe Roger Clemens. The facts are what they are, in that Clemens was acquitted.

The Commissioner's office was using intimidation by floating out to the press a possible lifetime ban against A-Rod. The truth is they could not jump to the third failed test penalty, because there has not been three test failures, or even one if my suspicions are correct. It was patently obvious now that they were simply trying to put pressure on A-Rod and his legal team to cave. This is typical legal maneuvering. Threaten the worse possible penalty to force an outcome that favors your position. Attorneys use this play book everyday. It appears at this point that A-Rod's attorneys are advising him correctly. They actually read the JDA as did I. Their interpretation as is mine is that A-Rod may be able to get his penalty reduced. 

The Commissioner's office is obviously looking at this like we are going to try to enforce the harshest penalty we can on A-Rod. From their point of view, they will have succeeded in tarnishing A-Rod's reputation and probably nixed his chances for the Hall of Fame. They know full well that nobody likes a cheater.

What I do not like is selective enforcement. Barry Bonds was vilified for his alleged PED use, but he never failed a single test, nor was he ever suspended either. Barry's punishment was to come from the Baseball Writer's of America who are the guys who vote players into the Hall of Fame. Baseball is held in such high regard compared to other sports. We only have to look at this weekend for proof. The NFL enshrined Christopher Carter this weekend. A truly great NFL player, but with a troubled past. The difference is that the NFL players vote other players into the NFL Hall of Fame. In baseball, Bob Costas and newspaper writers vote in the players. Seems a little ironic doesn't it? I think the NFL has it right. The players know each other better than Bob Costas or any other sports writer ever could. Something for the Major League Baseball Players Association to think about, no doubt. 

A-Rod's punishment is already baked in the cake as far as the baseball writers are concerned. However, whether the Commissioner's office is going to win their case based on the JDA is up for arbitration. If the arbitrator follows the JDA, then you should see a reduction in the 211 game penalty to 50 games. The only thing that would change that is an out of arbitration settlement.

It is in the JDA that the arbitrator can reduce the penalty, but to no less than the minimum. The minimum in this case is 50 games. This is my prediction baring a settlement. 

For the record, I do not like unethical people in my field, but I do believe that even those people are entitled to go through the process to defend themselves whether that be arbitration or through the courts. It is not up to you or I to be their judge.