Jonah Keri’s piece on Biogenesis is terrific, and answers a lot of the questions I had. The first question was whether MLB could pursue the punishment of players who don’t fail a test outside of the regime; apparently, they can. I have no objection to the “just cause” clause being used to punish players who didn’t fail an official drug test in principle, although we’ll see what the strength of the evidence that emerges here is. The potential for abuse, as the more important WO(SCOPWUS)D has taught us, is substantial, particularly when evidence is generated based on the coercion of legal threats, but we’ll see.
What I do object to in principle, and would condemn in even stronger terms than Jonah, is the suggestion that MLB might try to make a case of PED uses two offenses, by counting the use and the denial of use as separate violations. I don’t know if this is just proposed overcharging that MLB is advancing so it has something to drop in negotiations, but if they’re serious about it it’s outrageous. Yes, yes, Major League Baseball isn’t bound by the Fifth Amendment, but pretending that there are two offenses when a player denies PED use is a gross subversion of the penalty structure that was collectively bargained. If MLB wants to increase the penalties for a first offense it needs to make a deal with the players, not arbitrarily increase the penalty with this silly sleight-of-hand. Should MLB actually pursue this, I assume an arbitrator will slap them down.
Or actually, maybe not, since as Jonah notes the last arbitrator to try to uphold the due process rights of the players was fired for his trouble; perhaps the new arbitrator will get the message. Which brings us to another important point Jonah raises. If MLB tries to suspend players based on evidence that turns out to be dubious or tries to subvert the penalty structure it agreed to, we could be looking at a major labor crisis MLB really doesn’t need. If a lackey arbitrator upholds a 100-game suspension for a first offense, we are looking at a meltdown that may result in another cancelled season.
And finally, as an indication about how we don’t know as much about the precise effects of PED use on performance as many people assume, I point to the presence of Mssrs. Montero and Martinez on the list. I guess without PEDs Montero would no longer be able to hit high school pitching?
…see also Pareene. Key point:
The worst possible outcome from all of this won’t be 100-game suspensions for nearly two dozen players (unless you’re a Brewers fan, obviously), but another round of kangaroo court hearings and idiotic prosecutions, designed around protecting the “sanctity” of a lucrative money-making venture involving adult millionaires (and hundreds of much less well-paid athletes). If, as it seems likely, some or even all of these suspensions fail to happen following appeal, we can probably all expect an epic storm of self-righteousness on Capitol Hill.
I can’t for the next round of
millions of dollars set on fire federal prosecutions of players based on evidence that has no chance of holding up in an actual court of law.