Suspend Your Disbelief

It’s not crazy to think A-Rod will win his appeal.

New York Yankees' Alex Rodriguez talks with reporters outside the Lakeland Flying Tigers visitor's clubhouse after reporting for his rehab assignment with the Tampa Yankees in Lakeland, Florida July 5, 2013.

New York Yankees’ Alex Rodriguez talks with reporters outside the Lakeland Flying Tigers visitor’s clubhouse after reporting for his rehab assignment with the Tampa Yankees in Lakeland, Fla., on July 5, 2013.

Photo by Scott Audette/Reuters

After numerous delays and weeks of conflicting rumors, Major League Baseball has finally body-slammed the Yankees’ Alex Rodriguez with a suspension running to the end of the 2014 season. The fading slugger is accused of using both testosterone and human growth hormone over several years, as well as attempting to “obstruct and frustrate” MLB investigators. The massive punishment came just a couple of hours after MLB suspended 12 other players for violations of its policy on performance-enhancing drugs—but each for just 50 games. It’s not at all clear, though, that A-Rod’s punishment will stick, and the disparity in punishment is just part of the problem.

The authority for the 50-game suspensions is clear: the Joint Drug Prevention and Treatment Program (usually called the Joint Drug Agreement), a compact entered into by the league and the players union after the steroids scandals of the 1990s. Under the JDA, 50 games is the penalty for a first violation. Presumably, all 12 of the non–A-Rod players saw the evidence against them and decided to accept their punishments—reportedly, no one plans to appeal.

According to MLB’s press release, Rodriguez’s 211-game suspension is a consequence of both violations of the drug agreement (taking PEDs) and baseball’s Basic Agreement (obstructing MLB’s investigation). Rodriguez’s suspension isn’t just greater than the 65-game ban that Ryan Braun recently accepted. It’s also more severe than even the 100-game ban that comes with a second violation of the JDA. So, is Rodriguez correct in suggesting that the real motivation here is to keep him from raking in money from his (insane) contract for as long as possible? And can he win the appeal he’s going to file?

We have some facts and legal principles to draw on in trying to figure out whether A-Rod can get his sentence reduced. Basically, his chances boil down to whether the arbitrator who will hear the appeal, Fredric Horowitz, thinks Commissioner Bud Selig had the authority to take such a drastic step.

It’s clear that the commissioner enjoys the broad authority we generally associate with a “czar” of any administration. In part, that’s because the job was created in the wake of the 1919 Black Sox scandal, where members of the White Sox were accused of taking money for throwing games. All agreed that some strict discipline was needed to restore credibility to the game, and the first commissioner, the baroquely named Kenesaw Mountain Landis, agreed to take the job only after given almost limitless power to act in the “best interests” of baseball.

Since then, the power of baseball commissioners has waxed and waned but has always been anchored in that broad right to protect the integrity of the game. Over the years, commissioners have voided the Oakland A’s attempt to dismantle the team by selling off the top players, suspended Atlanta Braves pitcher John Rocker for idiotic statements about gays and foreigners, and—most famously—kicked all-time hits leader Pete Rose out of the game for life for betting on baseball.

But there are limits to what even the czar can do. And as such, there are at least two possible ways A-Rod could win his appeal.

First, he can argue that the Basic Agreement between MLB and the union can’t be used to discipline him in this case, because the JDA provides the only acceptable punishment. On the face of it, this argument has some merit. The JDA is a tediously detailed document that sets forth (and then lists by name) three categories of banned substances: drugs of abuse (think marijuana and other drugs that aren’t likely to improve on-field performance), “performance-enhancing substances” (the agreement lists 70 different PEDs), and stimulants. The agreement is also a model of due process protections for the players, as it establishes the number of times players can be tested, sets out rigorous requirements for the testing itself, and—most significantly—sets forth very specific penalties for violations.

There’s even judicial precedent for the proposition that the commissioner is restricted to the punishments set forth in the JDA. In a 1977 case, Atlanta National League Baseball Club v. Kuhn, a federal court ruled that where Commissioner Bowie Kuhn had specifically told the clubs not to yap about potential free agents while they were still under contract, he could use his power to suspend voluble Atlanta Braves owner Ted Turner for a casual remark about how he’d pay anything for slugger Gary Matthews. But the court also voided a second punishment—the Braves’ loss of a first-round draft pick in the following year—on the grounds that such a penalty wasn’t authorized by the collective bargaining agreement. In short, however broad Kuhn’s powers, they were limited by the terms of the agreement itself.

Expect Rodriguez to make a similar argument, using the specificity of the JDA on suspension to say that this exhaustively detailed and specific document provides the only source of authority for drug suspensions. Otherwise, why did the JDA bother to create penalties in the first place?

What if the commissioner tries to argue that A-Rod engaged in multiple violations of the policy in one fell swoop—that this shouldn’t be treated as a “first” violation in the parlance of the JDA? Rodriguez could respond that, under the agreement, discipline can’t be meted out for the second, third (and so on) offenses before there’s notice of the first one. The JDA isn’t completely clear on this issue, though. Jeff Fannell, who worked as counsel for the MLB players association for more than a decade and is now at St. John’s University’s sports law program, believes it’s possible that the commissioner will argue that—because we’re dealing with “non-analytical positives” (those obtained not through testing but through other evidence)—A-Rod’s punishment should be ratcheted up. But nothing in the JDA specifically authorizes suspending a player in this way.

So the 211-game suspension might have to stand on the conduct that isn’t in the JDA. According to MLB’s statement, “Rodriguez’s discipline under the basic [collective bargaining] agreement is for attempting to cover up his violations of the program by engaging in a course of conduct intended to obstruct and frustrate the Office of the Commissioner’s investigation.” In other words, it’s not the drugs but the lying about the drugs. (I’m flashing back to the Clinton impeachment here.)

Where, exactly, in the Basic Agreement does Selig get the authority to suspend A-Rod for obstruction? Here, too, things are muddy, because the statement doesn’t specify a provision. Some observers have noted that Selig has rejected proceeding under a “best interests of baseball” provision, a nuclear option that would’ve allowed him to keep A-Rod off the field while the suspension was under appeal—an appeal that, oh by the way, would be heard by Selig himself.

Weirdly, the Basic Agreement contains two sources of authority for the commissioner to invoke this broad power. The nuclear option arises under Article XI, where it’s set out as an exception to the rule that grievances are arbitrable. It’s possible, though, that Selig is proceeding under Article XII (B). Under that provision, the commissioner can discipline a player “for conduct that is materially detrimental or materially prejudicial to the best interests of Baseball.”

While we don’t know (and may never know, if the arbitration proceedings remain confidential, as they are supposed to), we can guess that Article XII is the source of A-Rod’s additional punishment. Indirect evidence to support this conclusion comes from an article in the Milwaukee Journal-Sentinel about Ryan Braun. In that case, according to a “baseball source,” the Brewers outfielder’s 65-game suspension arose from both the JDA and Article XII of the Basic Agreement. In addition to the 50-game suspension for a first violation, he got an additional 15 games (big deal!) for things he’d said about the drug policy and the collector of his urine sample back in 2012.

If that report is correct, Selig’s shown he’s willing to go there in the recent past. But Article XII might be a tough sell before the arbitrator. Despite the broad power it confers—power that was apparently deployed in the Braun case—Horowitz will need to be convinced that A-Rod’s punishment is consistent with that meted out to other players. It won’t be enough to show that he lied about his drug use, because such denials are routinely made by accused players, with no additional sanctions for the ritual mendacity. So a lot will ride on the purported “obstruction,” and here A-Rod might end up being grateful to Melky Cabrera for creating a phony website to try to cover up his own PED use last year. Cabrera’s suspension? Just the 50 games spelled out in the JDA, with no additional penalty for obstruction.

So in the interests of fairness and consistency, the commissioner’s office is going to have to show something fairly outrageous to prevail on appeal. If MLB has proof that A-Rod bought documents linking him to the Biogenesis wellness clinic to keep them away from investigators, the arbitrator would likely feel on safe ground in upholding such a long suspension. But A-Rod’s expected appeal—if it’s not just an attempt to buy time to play and get paid—suggests he thinks the evidence of obstruction isn’t that strong. We’ll see. Perhaps the most likely outcome is that the case will settle, because both sides have too much to lose in arbitration.

Specials thanks to Jeff Fannell, deputy director of a graduate program in comparative sports law at St. John’s University, and Andre Smith of Widener Law for their expert help in the preparation of this piece.