By Jay Jaffe
Though they were undeniably late to the party when it came to acting upon the spread of performance-enhancing drugs, Major League Baseball and the players' union have taken significant steps forward to strengthen the game's drug policy in recent years. They've instituted random testing for steroids, amphetamines and human growth hormone, with suspensions that carry substantial penalties, and the implementation of a new longitudinal profiling program increases the strength of that policy. The two sides have built enough trust that there's a growing consensus among the union's rank and file to increase the severity of penalties, even though it's not apparent they're actually necessary.
The league's handling of the Biogenesis scandal threatens to undo many of those gains, particularly amid the growing perception that it is selectively targeting Ryan Braun, the biggest name to surface via the Miami New Times report aside from that of Alex Rodriguez. Earlier this week, ESPN's T.J. Quinn — one of the top investigative reporters covering the PED beat — tweeted that the league has "A-Rod and Braun strongly in their sights" when it comes to meting out punishment even in the absence of a positive test, and on Wednesday, USA Today's Bob Nightengale wrote that Braun "happens to be MLB's Public Enemy No.1."
That's because Braun successfully appealed a positive testosterone test last year due to the testing regime's failure to follow a strict protocol for storing his sample. Under the game's drug policy, that appeal should never have come to light, but information on what was designed to be a confidential process was leaked to Quinn and Mark Fainaru-Wada (veteran of the Barry Bonds legal beat) by someone involved in the testing process or inside the commissioner's office. The case ultimately went before independent aribtrator Shyam Das, who overturned the suspension, after which the league hastily fired Das, who had been on the job since 1999. That put Das in select company with arbitrators Peter Seitz and Thomas Roberts, who were dismissed by MLB after handing down high-profile defeats; Seitz nullified the reserve clause in the Messersmith-McNally case back in 1975, while Roberts ruled that owners and management colluded against free agents in the winters of 1985 and 1986.
Already the opening salvo in this new battle has been fired, with MLB suspending Braun's former University of Miami teammate Cesar Carrillo — currently a Tigers farmhand not on a 40-man roster and thus not subject to protection by the Players Association — for 100 games due to his Biogenesis connection. Carrillo never tested positive, but MLB rung him up nontheless. As Nightengale reported:
MLB called him in and told him that if he told the truth, punishment might be minimized. Carrillo talked, MLB didn't believe him, according to two officials with direct knowledge of the testimony, and whacked him. He received 50 games for appearing in the Biogenesis records and 50 games for being uncooperative.
Nightengale described MLB officials as "infuriated" over Das' ruling and "relentless in their pursuit, trying to make life as miserable as possible" for Braun, who has continued to maintain his innocence and is said to be cooperating with the investigation. The Brewers' slugger argued that his original positive test resulted from a sample that had been tampered with, and his explanation for appearing in the Biogenesis documents is that his lawyers consulted with the clinic's doctor, Anthony Bosch, to aid his previous defense.
Though MLB has the power to suspend a major leaguer without a positive test — termed a "non-analytic positive" — the league faces numerous obstacles in the Biogenesis case. They were rebuffed in their attempt to acquire the New Times' papers, they lack subpoena power to compel players to testify, and the only governmental interest in the case centers around the Florida Department of Health's investigation of Bosch, not the baseball players named — of whom Nightengale says there are at least 90, far more than the number of names that have surfaced.
Beyond strong-arming Carillo, the only as-yet-named player not on a 40-man roster, MLB appears willing to further break precedent by granting immunity in exchange for testimony. Again from Nightengale:
In some cases, according to two officials who spoke to USA TODAY Sports but were unauthorized to speak publicly, some players will be granted immunity even if they admit guilt to the use of performance-enhancing drugs. They would have to fully disclose their arrangement with Tony Bosch… including any possible involvement by their agents or knowledge of other players who received performance-enhancing drugs from him.
Though MLB executive vice president Rob Manfred denied the league's targeting of Braun via a statement, it's difficult to avoid the conclusion that it is doing so given how much information has already reached the public via leaks. Beyond the trampling of confidentiality, the aforementioned sources have introduced the potentially unequal treatment of alleged violators, which represents the further abandonment of principles at the very core of the Joint Drug Agreement, due process in handling each case as well as zero tolerance for violators. If the commissioner's office hands down a suspension to Braun by this means, it could well provoke another grievance, and even with a new arbitrator in place — one that both the league and the union must agree upon — MLB risks the embarrassment of another high-profile defeat.
In the process, the league could undo the consensus and goodwill it has built with the union on the topic of imposing harsher penalties, consensus and goodwill that's taken years to build. Without ensuring a fair procedure, its prosecutorial zeal risks further tarnishing the image of one of the game's best and most popular players, one who has represented Team USA in the past two World Baseball Classics and who serves as the marquee star in the game's smallest market.