By Nathan Petrashek
I intended to sit down last night after the game and write about the controversy that divides Brewer nation: Rickie Weeks vs. Scooter Gennett. Instead, just before I arrived at the game, an even more controversial topic was revived by an ESPN report claiming that MLB “will seek to suspend about 20 players connected to the Miami-area clinic at the heart of an ongoing performance-enhancing drug scandal,” including Ryan Braun.
As Kyle Lobner over at Brew Crew Ball observes, that isn’t really news. MLB has been “seeking to suspend” Braun for over 1 1/2 years. What is news is that the former head of the now-defunct clinic has reached an agreement with MLB and will cooperate with MLB’s investigation. Presumably, this includes providing information and documents about his clinic’s activities; according to ESPN, Bosch will provide “anything in his possession that could help MLB build cases against” players. In exchange, MLB will drop a lawsuit it filed against Bosch, a suit that could have had legs but was pretty clearly intended to use the judicial process to obtain the documents Bosch has now agreed to provide. Bosch also gets indemnification for his clinic’s potential liability and personal security. But it seems the thing Bosch fears most is federal prosecution; his attorneys, who checked in with the Department of Justice during negotiations, also bargained for MLB’s promise to help with any future criminal charges. Which isn’t a small benefit, because MLB was the one attempting to bring federal authorities into this mess in the first place.
Bosch hasn’t yet sung; word is he’ll meet with attorneys and officials on Friday, and it’s not clear when any document disclosures will take place. The ESPN report seems to project a pretty ambitious timeline, then, in anticipating that suspensions will be levied in just two weeks. Probably not going to happen. And since we have virtually no facts about the clinic, Bosch, MLB’s investigation, or what might be revealed about individual players, including Ryan Braun, it makes little sense to speculate whether a suspension is justified at this stage. What I want to do here is outline the process of Braun’s inevitable appeal should he be suspended.
Section 2 of the Joint Drug Agreement prohibits players from “using, possessing, selling, facilitating the sale of, distributing, or facilitating the distribution of” any prohibited substance. This means that the complicated testing process we’ve all come to know is just one aspect of enforcing the JDA; a positive test will indicate the presence of a banned substance in a player’s body, but MLB can’t prove commission of any of the other offenses by virtue of a chemical test.
So how much evidence does MLB need to punish a player for possession, sale, or distribution of a banned substance in the absence of a positive test? We have no idea. The JDA doesn’t specifically say. The “Discipline” section appears to gives the Commissioner pretty much unfettered discretion to prosecute players for these acts. With respect to sale or distribution, the Commissioner only needs evidence of participation. Absent a criminal conviction or positive test, the Commissioner only needs “just cause” to suspend for use or possession. We have no idea what “just cause” is because the JDA doesn’t say.
This obviously leaves substantial room for Braun and the union to argue against any non-analytical suspension. The process for challenging a suspension will look familiar to those who followed Braun’s earlier appeal. An arbitration panel consisting of an impartial arbitrator (and perhaps two party arbitrators) will be appointed. The panel will decide independently (i.e. without deference to the Commissioner) the appropriate level of discipline and whether that discipline was supported by “just cause” – again, whatever that means. There are special rules governing the timing of these “just cause” appeals. The panel has to convene a hearing as soon as practicable but no later than 20 days after the appeal. The panel then must make “all reasonable efforts” to finish taking evidence, close the hearing, and reach a decision within 25 days. It then has 30 days to reduce that decision to writing.
What this should tell you is that, even if MLB levies a suspension against Braun within the next two weeks, it will be months before there is any definitive resolution of the matter. The legal issues-like the meaning of “just cause”-arising from the JDA’s poor drafting could elongate that timeline even further. In short: there isn’t going to be a quick resolution, and Braun could well have another lengthy fight on his hands.