• Probe litigation could be lengthy
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     | July 11,2013
     

    NEW YORK — We may never know exactly what Alex Rodriguez and Ryan Braun are being accused of in Major League Baseball’s Biogenesis investigation — if they beat the rap.

    That’s because details likely will be caught in a tangle of legal gymnastics involving MLB, the players’ union and probably an arbitrator, who could rule no discipline is warranted.

    Lengthy proceedings make it nearly a certainty most, if not all, suspensions would be served in 2014.

    Among the early legal issues: Does the commissioner’s office have the right to announce any suspensions before grievances are decided by an arbitrator? Can a player not previously disciplined under the drug agreement be suspended for more than 50 games because of multiple violations?

    Two people familiar with the investigation said if management and the union can’t agree on the process, arbitrator Fredric Horowitz likely would be asked to decide. The people spoke on condition of anonymity because no public statements were authorized.

    MLB has spent most of the year investigating about 20 players for their links to Biogenesis of America, including A-Rod and Braun, both former MVPs. Miami New Times reported in January that the closed Florida anti-aging clinic had distributed banned performance-enhancing drugs to major leaguers.

    Lawyers for the commissioner’s office have been interviewing players and many, including Braun, have refused to answer questions about their dealings with Biogenesis, the two people said. Braun was interviewed in late June, and Rodriguez is scheduled to be interviewed Friday.

    Braun and Rodriguez have said they didn’t do anything that merits discipline.

    The players’ refusal to respond to MLB’s questions were first reported by ESPN and the New York Daily News.

    MLB hopes to complete the player interviews in mid-July but is not sure whether it will meet that schedule. Management then will have to decide what discipline it intends to impose.

    Baseball’s joint drug agreement calls for a 50-game suspension for a first offense, 100 games for a second and a lifetime ban for a third. Among the players linked to Biogenesis, Toronto’s Melky Cabrera, Oakland’s Bartolo Colon and San Diego’s Yasmani Grandal have served 50-game penalties following positive testosterone tests.

    The drug agreement specifies that if a suspension for a first PED offense is challenged by the union, the violation is not made public unless the penalty is sustained in arbitration. However, discipline for second and third offenses are announced and served while the grievance is litigated.

    There also is a provision stating “the commissioner’s office may publicly announce the discipline of a player if the allegations relating to a player’s violation of the program previously had been made public through a source other than the commissioner’s office or a club” or their employees. The sides or the arbitrator will have to decide whether the media accounts of Biogenesis are covered by that clause.

    Each player’s case probably will be handled in a separate arbitration, which could slow down the process while the sides secure dates before Horowitz or agree to retain other arbitrators.

    The three players who already have served suspensions also may claim they can’t be penalized under a provision prohibiting multiple disciplines for the same use. In addition, they can’t be penalized for conduct that took place before they were given notice of their positive drug test.

    It may be difficult to discipline players for refusing to answer questions

    Commissioner Bowie Kuhn suspended Ferguson Jenkins in September 1980 after the Texas pitcher was arrested in Toronto and charged with possession of cocaine, hashish and marijuana. Kuhn wrote to Jenkins saying he imposed the penalty because the pitcher “declined to cooperate with this office’s investigation.”

    Following a grievance hearing, arbitrator Raymond Goetz lifted suspension two weeks later.

    “As a practical matter, the commissioner was compelling Jenkins to jeopardize his defense in court. While this may not actually violate any principles of constitutional or criminal law, it offends the moral values of our society on which the legal privilege against self-incrimination is based,” Goetz wrote.

    He said players should not be required to prove their innocence because “this approach would stand the requirement of just cause for discipline on its head.”

    In the Biogenesis case, an arbitrator would have to rule whether refusing to answer questions while no criminal charges are pending may be penalized under the “just cause” provision of the drug agreement.

    Horowitz, a veteran of baseball and NHL salary arbitration cases, was appointed baseball’s arbitrator in June last year. Shyam Das, who had served since 1999, was fired in May 2012, three months after overturning a 50-game suspension imposed on Braun. Das ruled the urine sample of the Milwaukee star was not handled by the drug collector in the manner specified by baseball’s drug agreement.

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