Alex Rodriguez

The evidence of use of performance enhancing drugs (PEDs) by Alex Rodriguez, Ryan Braun, and about 20 other MLB players may be substantial, but is it the kind of evidence that’s capable of sustaining those players’ suspension for violating baseball’s Joint Drug Prevention & Treatment Program? Don’t hold your breath for Commissioner Bud Selig to start handing out suspensions. The Biogenesis scandal is just getting started.

Eariler this week, ESPN’s Outside the Lines broke the story, and now Huffington Post, USA Today, and every other major news media outlet in the country are reporting that Major League Baseball is on the verge of suspending a host of players for as many as 100 games, based on the alleged testimony of Tony Bosch. Bosch is the former head of Biogenesis of America, the so-called anti-aging clinic in South Florida, which earlier this year was the subject of a scathing Miami New Times article connecting them with supplying PEDs to numerous MLB players.

In March, MLB filed a lawsuit against Bosch and the now-defunct Biogenesis, alleging tortious interference, and that they ”participated in a scheme to solicit Major League Players to purchase or obtain, and/or to sell, supply or otherwise make available…[banned] substances.” [PDF] The merits—or, to be more specific—the lack of merit in the lawsuit is the topic of another discussion. But seeing as how MLB is suing for money, Biogenesis is out of business, and Tony Bosch is worth about as much as an out-of-work snake oil salesman, the league’s motives for filing suit have to appear suspect. Unless, perhaps, they only brought the suit to see what documents they could get through the discovery process.

Bosch has been on MLB’s radar for years, and for years he’s refused to talk to them. Now, according to the Outside the Lines report, it seems that Bosch has changed his mind:

In exchange for Bosch’s full cooperation, Major League Baseball will drop the lawsuit it filed against Bosch in March, indemnify him for any liability arising from his cooperation, provide personal security for him[,] and even put in a good word with any law enforcement agency that might bring charges against him.

Even if Bosch tells MLB everything they want to know, how credible is he? He’s not a doctor, his snake oil clinic is out of business, and just a few weeks ago he told ESPN’s Pedro Gomez (@pedrogomezESPN): “I don’t know anything about performance-enhancing drugs.” But forget about what Bosch has to say—for a minute. In fact, let’s assume he has the most damning information about PED use in baseball to date, something to make the Mitchell Report look like mere Cliff’s Notes. All the testimony in the world does not a positive drug test make.

Major League Baseball’s drug policy [PDF] lays out its disciplinary procedures in Section 7, which provides that: “A Player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the use or possession of a Performance Enhancing Substance, will be subject to the discipline set forth below.”

The list of banned substances is roughly four pages long, and the testing procedures are also set forth in great detail. Further, most of the operative words in the policy are given definitions, to avoid any ambiguity. The appeals process is also set forth in great detail, on pages 28–32. It describes the procedures for challenging a positive test violation, and states that the commissioner’s office has the burden of proving that a player’s test result was positive, and that the test was conducted in accordance with the procedures required under the rules. The “program,” as it’s referred to, is 34 pages long, and the rules go on and on, but they’re focused on the types of substances banned, and the procedures that must be followed to establish a violation of the program. There isn’t a single section in the program that defines “possession,” or what constitutes conduct that “otherwise violates the Program.” Moreover, there isn’t a single reference in the five-page appeals section that explains the procedure for challenging a witness’s testimonial evidence of an alleged violation.

Perhaps Commissioner Bud Selig will try suspend the accused players notwithstanding the absence of positive test results. According to ESPN’s Pedro Gomez & T.J. Quinn (@TJQuinnESPN), the commissioner is planning to suspend A-Rod and Braun for 100 games—i.e. as a second-time violators—even though neither one of them has a record of a first violation. That seems to fly in the face of Section 7.L, which states that “a Player will not be disciplined for a second or subsequent violation involving a Prohibited Substance that occurred prior to the time that the Player received actual notice of his first positive test….”

Given the obvious problems with Tony Bosch’s credibility, the total lack of scientific evidence of actual PED use by any of the players accused, and the language in the league’s drug policy, it’s a little surprising that virtually every news outlet is reporting that A-Rod’s and Braun’s suspensions are imminent. Even if Bud Selig decides to hand down suspensions, don’t expect it to happen anytime soon. Seling is still reeling from the embarrassment he suffered in the wake of last year’s appeal that overturned Ryan Braun’s positive drug test and suspension. This thing is far from over.


Earlier: MLB says they’re taking their Ball and Going Home

Braun Decision Affirms Fact that Appeals are Crucial to our System of Justice

Photo credit: Rubenstein