By Jay Jaffe
With the Miami Biogenesis clinic scandal serving as a backdrop, commissioner Bud Selig and the Major League Baseball Players Association have both signaled a willingness to up the ante for violations of the game's performance-enhancing drug policy beyond the 50-game suspension for first-timers. The push comes even as the two sides have substantially beefed up the policy for the coming season by adding random in-season HGH testing and longitudinal profiling. High-profile players such as Matt Holliday, Dustin Pedroia and Ryan Zimmerman have called for increased penalties, and last month, union head Michael Weiner spoke of a strong consensus among the rank and file: "We are at a point, and it's clear where the majority of players are: They want a clean game, and we want to make it clear to players that is where the majority is at."
At least publicly, the players appear to be in the throwing-stuff-at-the-wall-and-seeing-what-sticks phase of considering additional penalties. One idea they've pitched is that of a two-tiered penalty system that distinguishes between those who intentionally violated the program by taking performance-enhancing drugs and those who accidentally ingest tainted substances, with the burden of proof would be on violators to prove that they belonged in the second category. Fox Sports' Ken Rosenthal offered two examples from among last year's suspensions in Phillies infielder Freddy Galvis, who said that his urine sample was found to contain "a trace amount of a banned substance — 80 parts in a trillion," and Giants pitcher Guillermo Mota, who said that the Clenbuterol in his sample came from ingesting children's cough medicine. Under the current "strict liability" policy, those players were considered as guilty as they would have been if caught with needles sticking out of their derrieres, responsible for anything that went into their bodies, accidental or intentional.
Such a distinction will remain a moot point, because according to Rosenthal, MLB has already shot that idea down, viewing it as impractical. One that's even more impractical is Nationals shortstop Ian Desmond's admittedly "unpolished" proposal in which a player who tests positive would lose his pay for 50 games but would be available to play. As Desmond explained to the Washington Times' Amanda Comak:
"It’s the manager's discretion, if he thinks the player is performing, then he plays. If not, he's on the bench, but he's around… Your face is in front of the camera, you have to deal with your teammates, and if you don’t play up to your potential, then if you hit free agency, people are going to see a true evaluation of you.
"I don't think the suspension is what players are afraid of. What players are afraid of is being subpar. And I don’t think in history there’s been someone who got busted and had to immediately be in front of the camera and say, 'Look, I did it.' … Let them face the hard road, playing without it, or let them do the extra hard work to be at the level they want to be at."
While Desmond's plan calls for increased accountability from violators — those face-the-music moments the media and general public appear to desire — being available to play without pay after the violation is actually a less harsh penalty, since players under suspension lose that portion of their salaries anyway. Given that my law degree came out of of a box of Cracker Jacks, I can't tell you if Desmond's plan actually violates a labor law for working without compensation, but anyway, it's not going anywhere.
More likely, we'll see something along the lines of an increase to a 100-game suspension for a first offense and a full season for a second offense. It's difficult to imagine the players going for such a draconian measure as a lifetime ban on a second offense, which is Selig's stated preference.
As to whether it's actually necessary, I'm not so sure. Last year, seven major league players were suspended for PED violations: Marlon Byrd, Melky Cabrera, Bartolo Colon, Galvis, Yasmani Grandal, Mota and Carlos Ruiz. The latter's suspension, 25 games for using a banned stimulant, will be served at the beginning of this season, as will that of Grandal. Those seven suspensions are more than in the previous four years combined; Eliézer Alfonzo was suspended in 2008, Manny Ramirez and J.C. Romero in 2009, Ronny Paulino and Edinson Volquez in 2010 and Ramirez again in 2011, though after he retired and was reinstated, his penalty wasn't served until the beginning of last year.
Given the improvements in the game's drug policy, it seems more likely that the increased number of suspensions reflect the program's enhanced ability to detect use rather than a new epidemic of cheaters, though in the wake of the Cabrera and Colon suspensions, BALCO founder Victor Conte did provide food for thought when he noted the increased availability of "fast-acting testosterone, creams, gels, patches and micro-dose injections." Harsher penalties may deter some, but so long as teams continue to hand out multimillion dollar contracts to violators, some players will choose to press their luck. Mark Teixeira offered an obvious analogy: "The IRS can do everything they can to try and stop it, but people are going to cheat on their taxes." One way or another, any changes too current policy will require both sides to sign off on revising the Collective Bargaining Agreement, which they've done several times in the past regarding drug policy. Longer penalties almost certainly wouldn't be put into place in midseason or apply to the Biogenesis bunch, who may not be suspended at all given MLB's lack of subpoena power, the unwillingness of the Miami New Times to hand over its papers and the Florida Department of Health's focus on Biogenesis operator Dr. Anthony Bosch rather than baseball players. That's a story for another day, however.