Analyzing MLB's Biogenesis case against Alex Rodriguez

Alex Rodriguez of the Yankees warms up during Alex Rodriguez of the Yankees warms up during batting practice. (Aug 9, 2013) Photo Credit: Jeffrey Basinger

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Now that Alex Rodriguez has filed an appeal of his 211-game suspension handed down by Major League Baseball on Monday, the focus turns to the upcoming battle in arbitration.

THE CASE

MLB's announcement of the suspension on Monday said Alex Rodriguez's discipline under the Joint Drug Prevention and Treatment program was based on his use and possession of numerous forms of prohibited performance-enhancing drugs, including testosterone and human growth hormone (HGH) over multiple years. The discipline under the Basic Agreement also was for attempting to cover up his actions and intent to obstruct MLB's investigation of the Biogenesis clinic.

Rodriguez had never been suspended for PEDs, but in 2009 he admitted to using them during a three-year period beginning in 2001 while playing for the Texas Rangers.

The penalty for a first-time offense, according to the Joint Drug program, is 50 games. It increases to 100 games for a second offense and a lifetime ban for a third.

Rodriguez received his suspension for what is termed a "non-analytical positive," which does not include a failed drug test and instead relies on a papertrail and witness testimony. Rodriguez was given multiple chances by reporters Monday to deny any PED use and claim innocence, but he did not do so, instead saying it was not the right time to state his case.

Based on what his attorney, David Cornwell, has said in recent weeks, Rodriguez's side will argue that the evidence -- including the Biogenesis lists central to the investigation -- was tainted by a disgruntled former employee of the now-closed anti-aging clinic in Miami. Rodriguez's argument might have been hurt when union executive director Michael Weiner said Tuesday that he "recommended" that Rodriguez accept a suspension of a certain length, although Weiner did not give the number publicly. That alone suggests a degree of guilt, and MLB claims to have volumes of evidence against Rodriguez, which is why commissioner Bud Selig pursued such a long suspension meant not only to punish Rodriguez but to send a message to the sport as a whole.

KEY FIGURES

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ALEX RODRIGUEZ: The Yankees third baseman was suspended 211 games by MLB for his involvement with PEDs and attempt to impede MLB's investigation in the Biogenesis probe. Of the 13 players suspended, he is the only one to appeal his suspension.

DAVID CORNWELL: The Atlanta-based attorney was hired by Rodriguez a few months ago in anticipation of an arbitration battle with MLB. Cornwell is best known for representing Brewers star Ryan Braun, who in February 2012 had his 50-game suspension overturned because of a chain-of-custody dispute regarding the testing sample.

FREDRIC HOROWITZ: Horowitz was hired as the arbitrator for MLB and the union after Shyam Das was fired by MLB after Braun's successful appeal. Horowitz, a 64-year-old Californian, is baseball's lone arbitrator for grievances. Horowitz has been an arbitrator since 1988, presiding over such matters as salary arbitration in the NHL. This will be his first major baseball case.

ANTHONY BOSCH: Bosch operated the Biogenesis clinic and allegedly supplied numerous players, including Rodriguez and Braun, with PEDs. He reportedly is cooperating in MLB's handling of the probe and likely will be a key witness against Rodriguez.

PORTER FISCHER: The ex-Biogenesis employee shared documents detailing alleged PED use with the Miami New Times, which published a report naming Rodriguez as a Biogenesis client on Jan. 29, 2013. He also is expected to be a key witness for MLB.

BUD SELIG: Selig, MLB's commissioner since 1992, has been committed to enforcing tougher penalties for PED users. He has battled the use of PEDs in the sport and commissioned the Mitchell Report, which was released in 2007 as an examination of the steroids era. One of the Mitchell Report's recommendations was that MLB start a Department of Investigations.

MICHAEL WEINER: Weiner, the players' union's executive director, said Monday that the union agreed with A-Rod's decision to fight the suspension. Weiner also said the union will "defend his rights vigorously." But Weiner told Sirius XM Tuesday that he "recommended" that Rodriguez accept a suspension of a certain length. He did not specify the number publicly.

FIVE KEY QUESTIONS

Can A-Rod’s suspension be reduced or overturned? Yes and yes, even though the latter is unlikely to happen. Arbitrator Shyam Das overturned Ryan Braun’s suspension for elevated levels of testosterone in 2012 when the outfielder’s legal team’s chain-of-custody defense successfully argued the transportation of his urine sample did not follow procedure. In Rodriguez’s case, it’s much more complicated, but the union believes the 211-game suspension is much too severe for what it says is a first-time offense for Rodriguez. Arbitrator Fredric Horowitz could side with the union and determine that a lesser number, perhaps 100 games or even 50, is a more appropriate penalty. As a potential precedent, Braun accepted a suspension for the rest of this season -- a total of 65 games -- when he took a plea agreement for his Biogenesis involvement on July 22.

Why won’t A-Rod say he’s innocent? Good question. But this isn’t a court of law. It’s an arbitration case, and Rodriguez doesn’t have to enter a plea here. MLB imposes a suspension and Rodriguez has the right to appeal. It then becomes MLB’s responsibility to convince the arbitrator that the penalty is a just one based on the Joint Drug Prevention and Treatment program. When the suspension was announced, A-Rod twice was asked if he denies using PEDs, and he replied, “We’ll have a forum to discuss all of that and we’ll talk about it then.” Rodriguez didn’t say when or where that forum will be, but it’s likely to be addressed during his arbitration hearing.

Can A-Rod and MLB come to a settlement after an appeal is filed? Technically, it still is possible at any point during this process, but neither side currently seems to be moving in that direction. MLB has grown frustrated with Rodriguez’s lack of cooperation during the investigation, and now that the landmark suspension has been announced, Bud Selig seems more determined than ever to see it through to the end. That comes with some risk -- the arbitrator could knock the number down significantly -- but Selig still can stand by his stance of doing what he can to eliminate PEDs from the game. Rodriguez also maintains that he will fight the suspension through arbitration.

What is the Yankees’ role going forward? Other than writing Rodriguez’s name in the lineup, not much. General manager Brian Cashman has refused to comment on the suspension, other than to say it is in MLB’s hands, and the Yankees say they have not been involved in the investigation. Of course, the team still has plenty at stake here. With roughly $97 million left on Rodriguez’s contract, which runs through 2017, the Yankees would save nearly $31 million if he is suspended for the full 211 games at the start of next season. That also would trim roughly $25 million off the Yankees’ 2014 payroll, which Hal Steinbrenner wants under $189 million to prevent paying a huge luxury-tax bill next year.

When will there be a decision? Union boss Michael Weiner said Monday that he doesn’t think there will be a decision until November or December because of the amount of information and complexity of the case. MLB and the union also need to work the arbitration hearing around Horowitz’s schedule.

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