Does MLB have a case this time?

Just cause doesn’t mean just ‘cause. You’re probably thinking about your non-unionized workplace. Your employer can discipline or fire you for a good reason, a bad reason, or no reason at all. In a workplace represented by a union, like Major League Baseball’s, it doesn’t work that way.

In cases of conduct and discipline, the employer bears the burden of proof. That burden is by a preponderance of the evidence.

I have seen cases where the union so thoroughly disproves the employer’s case through nothing more than cross-examination of the employer’s witnesses that it does not even put on a single defense witness. I’ve also seen cases where the employer just flat-out fails to prove compulsory elements of its case. Without proving certain elements, the entire argument falls apart like a house of cards.

Generally, once an employer proves its case, it must also prove that the ensuing discipline is reasonable and appropriate for the conduct. What’s interesting in MLB and the MLBPA’s Joint Drug Agreement is that the parties have agreed to the penalties up front. There is no argument on the question of penalty and no mitigation.

Moreover, the conduct involved under the Joint Drug Agreement (JDA) is a strict liability offense. Once proven to have occurred, normally through a positive test, there is no requirement to show intent to violate the rules. So, it should be relatively simple for MLB to suspend a player for violating the JDA, right?

Well, mostly. Ryan Braun’s prior case proved that it’s not a positive test if the testing protocols are not followed, following the tenets of the fruit of the poisonous tree theory of criminal law. If the evidence is obtained or maintained improperly, it cannot be relied upon and for the purposes of the hearing officer, does not exist.

With all that as prologue, we are now presented with a report that MLB intends to suspend over 20 players without a positive test. How is that even possible? MLB is going to have to prove its case of possession of substances on the banned list through circumstantial evidence rather than use through testing evidence. It doesn’t have any player arrest or conviction for possession going for it, either. MLB has to prove the entire case for itself—and it’s going to be very difficult to prove.

First and foremost, MLB’s key witness is very weak. Craig Calcaterra explains why here. But for many of the alleged violators, MLB’s witness likely was dealing with intermediaries. If he never met the player in person and did not directly provide the PEDs to them, the case becomes even more tenuous.

But beyond that, there’s something that MLB has to go up against in this case: its own testing regime. MLB has called its testing the best in sports, or at least U.S. professional sports. Meanwhile, except for a mere few of the players on the list, all of them have tested negative, repeatedly negative, over the course of the period they are alleged by the questionable witness to have received and used these banned substances.

MLB is doing nothing more than undermining its own testing system in the eyes of the media and the public. “Yes, Mr. Arbitrator, we believe in our testing system, it’s the best around, and these players tested negative on multiple occasions, but you should ignore that.” That sounds more like exculpatory evidence than it does corroborating evidence for the testimony to be offered by MLB’s witness.

But doesn’t that also implicate the players who tested positive and who also appear on the list? Of course it does. But they have served their suspensions. They can’t be disciplined twice for the same offense, so how would MLB prove that possession didn’t occur at the same time as their positive test? Wanting the test and the alleged possession to be separate offenses is one thing, but MLB will have to prove it to be more reasonable than not by a preponderance of the evidence.

And what of the other rumored charge—lying about PED usage during the investigation? That is a compounding charge that relies upon the first charge being proven. If MLB can’t prove PED usage or possession, how can it further prove lying during the investigation?

It would seem to me that this is just another attempt by MLB to undermine its own product: its players. Surely, it has a goal better than challenging its testing program publicly and losing a host of very public discipline cases and ultimately firing more arbitrators.

MLB representatives have stated at many professional labor relations conferences over the past couple of years that it has raised its game. It has hired professionals to handle labor law to match those of the MLBPA, who had been beating them for decades. This case, at first blush, appears to be just another in a long line of overreaching by the league and the owners in a multi-decade-long attempt to pretend that it doesn’t have to follow its contract or labor law.

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Matt T.
9 years ago

Why even bother with testing if MLB can get a totally credible witness (that’s sarcasm in case you missed it) to just tell MLB who the users are. Or maybe they can ask a psychic. Or Dan Shaughnessy (same thing).

Greg Simons
9 years ago

Well said, Mr. Freedman; ditto for Craig Calcaterra in his linked article; and good comment, Matt. T.

This is another mess MLB is conjuring up for reasons that are yet to be made clear.

9 years ago

I agree that MLB has a tough road ahead of it, but let’s be honest… we have no idea what evidence Mr. Bosch is providing. It seems unlikely to me that MLB would proceed on his word and hand-written, coded notes alone, but then again they’re out for blood and may not be acting rationally.
As for undermining the testing program, I don’t think it’s a secret that even the best testing protocols in the world (like MLB claims to be) struggle to keep up with the cheaters. They’re always playing catch-up out of necessity. If Mr. Bosch can explain HOW his guys are beating the tests, and MLB and the union can adjust the JDA accordingly, it might go a long way towards minimizing the damage from having to show their testing procedure has failed.

Jim Casey
9 years ago

I agree with Dave’s comment, and though the burden of proof may be on the MLB, they don’t have to prove a case to a jury in a court of law. Playing pro baseball is not a right. Misguided or not, MLB owes it to the majority of clean players to get rid of the cheaters any way they can. As questionable a witness as Mr. Bosch may be, that’s all you’re going to get, until and unless players start rolling over on each other, which could happen. On a purely personal note, any possibility I might never have to see A-Rod play again is something I would welcome, no matter how it is accomplished.

9 years ago

It seems to me that this is all theater and has been for several years.  MLB gets to hold press conferences to tell the public how much they really care about PEDs, and they care much more about appearing to care than actually caring.  They don;t want the black eye, they don;t want to be accused of being complicit or at the very least laissez-faire in regards to the problem in order to inflate offense and draw crowds and they really don’t want to have to go before congress again.

Remember, Bud Selig is a used car salesman.

Sam R
9 years ago

Excellent article, mang.  MLB can’t go back in the past to test its players, so I think everything will be a huge waste of time and resources.  As soon as they announce any suspension, there will be appeals, and the appeals will last even longer.  But I don’t think anything will happen, and MLB will simply embarrass itself. 

Bob Costas should be the Commissioner of Sports.

Paul E
9 years ago

How about, “if we embarrass enough players, maybe they’ll stop using PED’s. God knows, WE can’t stop them.”

I imagine if MLB were to stop testing and accusing players and eventually discovering the guilty, we’ll always be suspicious of a Joey Bats, Edwin Encarnacion, and, most recently, Domonic Brown for newly found power surges. No?

Personally, I like the threat of testing so it keeps the intentional and unintentional walks as well as the pitching changes to a minimum. Hence, a 2 1/2 hour game…..

Geoff Buchan
9 years ago

It’s good to see someone with legal experience echoing my initial reaction to hearing this news:

I’ve long felt that MLB’s testing was mostly ineffective and for show, but suspending players based on Biogenesis records underscores how poor the testing is, if you accept the assertion that those rumored to be suspended did in fact take PEDs.

There’s simply not much random, year-round testing, and so long as players know in advance when the tests will be, passing them is *much* easier.

Lisa Gray
9 years ago

If the players knew in advance when the tests were gonna be, wouldn’t NOBODY fail them. i mean, even they aren’t THAT stupid.

i think that this whole thing is to let the owners get into position to accuse players based on no or flimsy evidence, especially the ones who make more than minium, so they don’t have to pay salary.

i also think that they want to get public opinion against certain guys they don’t like.

i keep telling everyone that it is dead easy to spike any player’s something so that he comes up with a positive test for SOMEthing, if the team wants him gone/disgraced.

they are trying to get the public to scream for banishing players forever on the basis of one positive test of any accusation like bosch and then the owners can use that to get rid of any player they don’t want to pay.

i can’t see the union agreeing to such a thing, especially because they have also foolishly agreed to the “intent” part of the program.

9 years ago

I think @MikeS has it right. It’s theater. Perhaps MLB will get to appear forgiving (begging the virtue). I am forever struck by Bill James’ comment many years back about most owners being dumb as posts. I think this has a lot to do with Ryan Braun making them look like idiots, and not a little with the Yankees wishing they could void ARod’s contract. It’s petty, and it comes off as such. The only possible rational explanation I can think of is that Bosch got into the news, so MLB needs to “look like they’re doing something” for PR, or, for MLB to further discredit the player’s union for some future marginal benefit. Other than that, this is appallingly bad for business. Really, MLB would (cynically) be best served by burying stuff like this. Like I said, dumb as posts.