THE BLOG

A Biogenesis Field Day for MLB Critics

08/02/2013 04:36 pm ET | Updated Oct 02, 2013

New York Times columnist Bill Rhoden says that we should be sympathetic with Alex Rodriguez who is being bullied by MLB's commissioner's office. Baltimore Orioles' manager Buck Showalter says that it's not kosher for A-Rod to be suspended for any length of time, because it will allow the Yankees to save on payroll and to get under the luxury tax.

Let's begin by acknowledging that no one outside the commissioner's office, a few people at the players' association and maybe a couple of others, knows the extent and robustness of the evidence that has been collected from Biogenesis. However, Ryan Braun's willingness to accept his suspension and the reported willingness of some dozen other players suggests that the evidence is credible and compelling. Further, in addition to receiving PED or HGH treatment, A-Rod reportedly also took action to obstruct MLB's investigation. At the very least, it seems premature for Bill Rhoden to be eliciting sympathy for A-Rod.

Buck Showalter wants to win. That's great, but there are two problems with his grousing. First, if MLB's anti-PED policy is to have legitimacy, it cannot show favoritism. If a player violates the policy or related aspects of the Collective Bargaining Agreement or his contract, the player must be penalized in proportion to the transgression, not according to which team he plays for. MLB cannot implement the steroid policy differentially in order to promote more competitive balance among the teams. MLB already has a competitive balance program (redistributing some $360 million from rich to poor teams, levying a hefty luxury tax on high payroll teams, preferential draft and international signing rules) and, while imperfect, it is working.

To be sure, some have raised questions from another perspective. Why is MLB willing to compromise with offenders in order to avoid an appeal? If the Joint Drug Agreement stipulates three levels of punishment (one violation -- 50 games; two violations -- 100 games; three violations -- life), then the suspensions should be meted out accordingly.

This line of argument believes that if Braun is suspended for more than 50 games, then he must have committed multiple violations and to give him a reduced suspension sends the wrong signal. For Braun to use PEDs and lose only 40 percent of a multi-million dollar contract for one season, when his multi-year deal is worth well over $100 million, seems like a gentle slap on the wrist. Similarly, isn't there evidence from Biogenesis that some of the players who will face 50-game suspensions used steroids more than once and why would MLB reportedly settle for a roughly 210-game suspension for A-Rod if he committed multiple violations?

There are several possible explanations. First, the three strikes provision encompasses only part of the Joint Drug Agreement. Another part, 7.G.2 or the Just Cause provision, enables discipline by the commissioner for other violations, including conduct that occurs over a period of time. Some of the players under investigation may fall under the Just Cause provision. Second, it is not a straightforward matter to count violations. For instance, if there are written records that indicate that a player received treatments from Biogenesis on April 5, 2011 and May 8, 2011, should this count as one or two violations. The problem is that MLB wants to treat analytic (failing a blood or urine test) and non-analytic evidence commensurately. If the same player failed a urine test on May 10, 2011, then he would be considered as having committed one violation. Is it fair to interpret the non-analytic evidence to denote two violations? In the case of Braun, he failed only one urine test.

(Relatedly, Bill Rhoden wants to know why, if A-Rod took treatments from Biogenesis, he hasn't failed any of his drug tests. Here it must be emphasized that no testing program comes close to infallibility. Many cheaters are not caught. There is a continual cat-and-mouse game played by testers and distributors. Biogenensis had a very sophisticated doping program that included fast-acting/fast-disappearing steroids and effective masking agents. The inherent randomness of when players are injected or when they ingest a substance and when they are tested means that there will always be false negatives in the testing. Further, some substances, like HGH, cannot be identified by a urine test or by a blood test taken more than two days after use. This is why MLB's Joint Drug Agreement includes explicit provisions for an investigation program to supplement its testing protocol.)

Third, the transgressions for some players may go beyond drug use, as indicated by the reported allegations against A-Rod or Braun's lying about his use. In these cases, the simple application of strike 1, 2 and 3 suspensions is incomplete.

Fourth, compromising over suspensions avoids potentially long, drawn-out, expensive and distracting legal battles that is neither in the interest of the player, nor of baseball. Moreover, it is in baseball's interest to keep any accused player off the field. Players can appeal any suspension under the Joint Drug Agreement and remain on the field until the appeal is adjudicated. (If A-Rod appeals his suspension and comes back next week, it will not only be disruptive to the Yankee clubhouse, but it will not be an easy time for A-Rod who will have to endure the vocal wrath of Yankee fans.)

Although it is a favorite pastime among sportswriters to pick sides and make black-and-white arguments, it is sensible here to recognize that the issue of controlling artificial stimulants is and will continue to be enormously complex. MLB appears to have the strongest deterrent program in U.S. team sports and it appears to be making its best effort to aggressively enforce the program. I suspect that the implementation is sometimes imperfect, but there is also abundant evidence that MLB is making a genuine and effective effort to control performance enhancing substances.