Benjamin Zeman is a prominent criminal defense attorney in New York City. He is a lifelong baseball fan, a lifelong Yankees fan and a recently converted A-Rod fan.
This article was originally published on October 21, 2013.
Although he has made half a billion more dollars than friends or fans over his professional career, A-Rod has been unfairly victimized and scapegoated by Bud Selig, Major League Baseball, the Major League Baseball Players Association and the New York Yankees.
1) Despite having only circumstantial evidence and the testimony of witnesses (Anthony Bosch and Porter Fischer) with clear motives to fabricate, exaggerate, cover for themselves, minimize their own crimes, distort, fabricate, whomp up, & c. (including allegations they were paid by Major League Baseball (“MLB”) to leak this info after A-Rod allegedly refused to be blackmailed) A-Rod has never tested positive for a Performance Enhancing Drug (“PED”).
- It should be noted that MLB allows for a player to be suspended for a “non-analytical positive” (as Manny Ramirez was), but that suspension, for a first time offender, is constrained by the specifically carved-out 50 games as prescribed by the Joint Drug Agreement (“JDA”).
2) MLB is arguing that A-Rod’s suspension should exceed the 50 games prescribed by the JDA because he impeded the investigation, lied to investigators, and was a multiple-time offender. The standard has not been consistently applied and thusly, the 211 game suspension levied by MLB is arbitrary and excessively punitive.
- The JDA specifally lays out testing, punishment, appeals, and oversight in meticulous detail, yet makes no mention of any punishment for impeding an investigation. If MLB actually punished for “impeding an investigation” Melky Cabrera would have been suspended for far more than the 50 games he received after it was exposed that he created a fake website to try to trick MLB into believing he had innocently ordered a tainted supplement.
- MLB can’t punish A-Rod under the Collective Bargaining Agreement (“CBA”) or the JDA for lying about his alleged PED use because they have not (yet) proven that he used PEDs. This is a classic attempt by MLB to put the cart before the horse. MLB has presupposed that A-Rod used these PEDs and thusly that he lied. But, as stated in 2)(a) supra, the JDA makes no mention of any punishment for impeding an investigation – which would have been the lying they are alleging he engaged in about the PEDs they claim that he took.
- Selig has no basis for using his “best interests” powers under the CBA to punish A-Rod for a drug-related offense. MLB and the Players Association specifically intended the JDA to provide the exclusive remedy for drug-related offenses. By trying to further punish A-Rod by using the “best interest of baseball” clause of the CBA the Commissioner has overreached the authority given to him by the JDA and thusly violated the spirit and letter of that agreement.
- A-Rod’s punishment is totally inconsistent with prior suspensions handed down by MLB for similar offenses. Of the Biogenesis crew, Ryan Braun was (I would argue arbitrarily – though he had actually tested positive previously for PEDs even though that case was thrown out based on a chain-of-custody issue) hit with a 65-game suspension, and the rest were given the 50 games as prescribed by the JDA. Why 211 for A-Rod?
- There is nothing in the JDA that empowers MLB to suspend any player for 211 games. The policy specifically dictates that a player receives a 50-game suspension for a first violation, a 100-game suspension for a second violation, and a lifetime ban (with the right to appeal for reinstatement after two years) for a third violation.
- Selig threatened A-Rod with greater punishment by saying that if he didn’t accept this ban he would suspend him for life. The 50, 100 and lifetime bans are specifically carved-out to avoid just this type of coercion and so the players are on notice as to exactly what punishment they will face if they violate the rules.
Related News: A-Rod walks out of arbitration hearing, vows to no longer participate (Yahoo! Sports)
3) Assuming arguendo that MLB employs the “non-analytical positives” exception to suspend A-Rod despite having never tested positive for PEDs, if suspended, A-Rod must be treated as a first time offender.
- Assuming MLB claims that 150 of the games were for first (50 games) and second (100 games) offenses, the JDA explicitly precludes MLB from punishing for a second offense prior to giving notice of a first. Here, all of the conduct A-Rod is being disciplined for presumably happened before he was given notice of his first violation.
- Bartolo Colon and Yasmani Grandal were not suspended by MLB despite their links to Biogenesis because they had already served 50 game suspensions for positive drug tests. Is MLB assuming that these positive tests were a direct result of these players’ use of Biogenesis drugs and so they don’t want to hit them twice with the same penalty? And if this is true for Colon and Grandal, why were they protected from double jeopardy when A-Rod is not?
- Even if MLB has evidence that A-Rod used more than one type of PED, the JDA only allows for a single suspension if a positive drug test reveals multiple drugs.
4) Even though A-Rod has made few friends and lost many of his fans, further marginalizing himself and damaging his reputation over the last few months, he was completely sold out by MLB and the Players Association when they leaked the suspension details prior to the start of the appeals process. Just because someone is generally unliked, that does not give MLB, the Commissioner, the Players Association or the New York Yankees carte blanche to make an example of him. He deserves the protection that his union dues entitle him to.
Which begs the further question of whether the Yankees collude with MLB? If this 211 game suspension is upheld, the Yankees are off the hook for $34 Million in salary. At least. (Presumably they would try to void the remainder of his contract if they can successfully argue he breached his contract, lied to them or committed some other act which could result in the voiding of his contract.) Suspending A-Rod for this long would give teams like the Yankees a perverse incentive to leak information to MLB if an aging player with a burdensome contract becomes less productive than the team was hoping they would be.
5) Despite claims that the MLB Players Association is the “strongest union in the world” (that doesn’t seem to want to protect its members) by not simply accepting this ban, A-Rod has forced both MLB and the Players Association to actually/kind-of confront their role in this whole PED plague of the last two decades and stop pretending like they are actually policing their sport in good faith. This exposure is good. MLB must own up to its role in all of this and stop pretending that handing out an overly harsh penalty to (arguably) their biggest star is somehow going to make us forget their part in all of this. Good for A-Rod for standing up to this blatant attempt to distract us from the real issue: players will always cheat and the sports organizations that (pretend to) want to police the athletes simply don’t know how to balance their love of profits with what they think the fans want them to do with respect to cheating. And the beat goes on.
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