ESPN's investigative unit, Outside The Lines, has reported that Major League Baseball will seek to suspend about 20 players connected to Biogenesis. Through the Miami-based anti-aging clinic, its founder Tony Bosch has allegedly supplied players with performance enhancing drugs. Some of the players being targeted by the league include Alex Rodriguez, Ryan Braun, Nelson Cruz, Jhonny Peralta, Bartolo Colon, Everth Cabrera and Melky Cabrera.
According to OTL's report, MLB will seek to suspend players for 100 games. The 100-game suspension is actually reserved for second violations; first time offenders only get 50 games. While most players would likely be first time offenders, MLB is taking the position that the players involvement with Biogenesis constitutes not one, but two offences, thereby warranting 100 games.
The rationale for the 'double offence' as reported by OTL, is as follows: "the players' connection to Bosch constitutes one offence, and previous statements to MLB officials denying any such connection or the use of PEDs constitute another."
Guilt Without A Positive Drug Test?
MLB's drug policy, called the Joint Drug Prevention and Treatment Program, provides that the league can suspend players for testing positive for PEDs. This is nothing new and fans are accustomed to seeing suspensions in baseball, and sports generally, accompanied by a positive drug test. In fact, baseball has never suspended a major league player without a positive drug test.
MLB did suspend Tigers minor league pitcher Cesar Carrillo for 100 games without a positive drug test. The wrinkle in that case, however, was that Carillo as a minor leaguer was not a member of the MLB Union, and on that basis, was not entitled to an appeal. So the decision went unchallenged.
So how can MLB even consider suspending the likes of Braun and Rodriguez without a positive drug test?
Way #2 To Test "Positive"
Well, the Drug Policy also provides that absent a positive drug test, MLB can still suspend a player if it can otherwise prove that a player possessed or used PEDs. In seeking to establish use or possession, the league can rely on things like admissions, written records, e-mails and third party testimony. All this is done with a view to establishing guilt in the absence of a positive test. This is called a non-analytical positive.
So in cases where we have a positive drug test, which is direct evidence of cheating, that would qualify as a positive analytical result. In cases where a league looks to establish cheating by way indirect evidence, that is a case of a non-analytical positive result.
There is a reason the collectively bargained Drug Policy (which means it was agreed on by the players) provides for non-analytical positives as a basis for suspensions. New technologies for detecting the use of PEDs in athletes are historically a step or two or ten behind sophisticated doping substances. So non-analytical positives help bridge that gap and can operate as an effective tool in fighting doping.
So that's where Biogenesis founder Bosch comes in. He has agreed to cooperate with MLB, providing the league with documentary evidence and sworn affidavit testimony detailing his involvement with about two dozen major league baseball players. Among the allegations will be that he sold the players PEDs and personally injected Rodriguez with PEDs (the Yankee third baseman has flatly denied the allegations).
So absent a positive drug test, MLB will look to rely in large part on Bosch's evidence to establish that certain players did in fact use or possess PEDs contrary to the league's Drug Policy. Bosch looks to be the key witness. More on that later.
Wait More - Way #3 To Test "Positive"
The Drug Policy also provides that the league may discipline a player if he has facilitated the sale or distribution of PEDs. Remember OTL reported that MLB may be seeking to base the suspensions on two things: (1) the players connection to Bosch, and (2) the players lying about that connection.
That means that MLB could argue that by lying about a connection to Bosch and doing business with him, players like Rodriguez and Braun allowed or facilitated the sale and distribution of PEDs. The word facilitate is key here since it doesn't require that it be shown that the players themselves actually sold or distributed the PEDs; rather, it's whether they made it easier for Bosch to sell or distribute the PEDs.
So in the view of the league, impeding MLB's investigation by lying constitutes facilitation.
Please Summarize. I hate Lawyers.
So bottom line is this: A player can be suspended if MLB can show just one of the following:
1) A player has tested positive for PEDs;
2) Absent a positive drug test, MLB can rely on other evidence to show that a player has used or possessed PEDs; or
3) MLB can show that a player facilitated the distribution or sale of PEDs (or distributed or sold PEDs).
How Will the MLBPA Respond?
The MLBPA, which is the association that represents the players, will undoubtedly vigorously and aggressively defend its suspended players. The Union has historically gone to great lengths to fight for its members, and this case will be no different. Don't be surprised if we see appeals and lawsuits.
Should a player be suspended, expect an immediate appeal by the Union. That appeal goes to an arbitrator. As part of an appeal, the MLBPA would focus on the reliability and veracity of the league's evidence. The primary focus of the MLBPA would likely be Bosch. They will go after his credibility.
MLB sued Bosch in March 2013 alleging that by operating as a PED pipeline to major league baseball players, Bosch intentionally caused the players to breach their contractual obligations. While it can be tough to succeed on this kind of tort, the lawsuit was brilliant as it pressured Bosch into cooperating with the league.
These circumstances could lead the MLBPA to allege that Bosch should not be believed as he cooperated with the league simply to evade prosecution. As well, the MLBPA would also attack Bosch's character. After all, they will argue, Bosch, while the key witness, is also someone who has engaged in criminal activity. So from the MLBPA's standpoint, Bosch is flawed, lacks credibility and has assisted the league with a view to insulating himself from liability.
Depending on how things shake out, the MLBPA could also argue that the league improperly characterized the events in question as constituting two separate offences, rather than just one. By being one event, the suspension would be reduced from 100 games to 50 games.
As well, if a player was previously suspended for a drug offence that is sufficiently connected to the new suspension, the Union would argue that the league is not permitted to suspend a player twice for the same offence.
If the arbitration appeal is unsuccessful, or does not yield MLBPA's desired result, it would not be a surprise to see the case head to court (the Union can't go straight to court since the CBA provides it has to go to arbitration first). While judges generally are reluctant to interfere with the decisions of arbitrators, it does happen. So a lawsuit remains a possibility.
There is a lot at stake for a lot of players in a case that is frankly unprecedented in its profile and impact.
And that means one thing: this is just getting started.
Eric Macramalla is TSN's Legal Analyst and can be heard on TSN Radio 1050. You can follow him on Twitter @EricOnSportslaw.