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Rosenthal: Union's focus should be on MLB's tactics, not on A-Rod
I can hear the drumbeat building, from fans, from reporters, from players, too.
“The system isn’t working,” they will say. “We need stronger penalties for performance-enhancing drugs.”
I’m still not convinced that argument is correct; Michael Weiner, the late head of the players’ union, pushed for the strictest possible testing, believing that the most powerful deterrent was the fear of getting caught.
That, however, is a theoretical debate at a time when the union faces alarming practical concerns in the wake of Alex Rodriguez’s 162-game suspension.
Union leaders always feared that drug testing would lead management to infringe upon players’ rights. Baseball’s investigative tactics in the Biogenesis case should only intensify those fears.
The players should worry less about A-Rod suing them and more about how A-Rod was brought down.
The players should make concessions in the Joint Drug Agreement only if baseball makes concessions of its own.
The antipathy for Rodriguez among his peers is secondary to the larger point: Baseball’s investigation was a fastball under the chin to the union, if not an outright beaning.
The union got knocked down, particularly when it declined to fight baseball’s lawsuit against Biogenesis, a clever strategic move that helped pressure Biogenesis founder Tony Bosch into cooperating with the sport.
Now, the union needs to get back up.
Think about it: If baseball can steamroll A-Rod, what might it do to a player of less wealth and influence?
The union should agree to increased penalties only if baseball sets up different tiers of punishment for those players who use PEDs deliberately and those who can prove their usage was inadvertent.
And, to honor Weiner’s vision, the union should insist that the revised JDA includes safeguards to better protect players’ rights.
How can the latter be accomplished?
The union should insist upon a code of procedure in which baseball’s powers of investigation are clearly specified and defined – the Ryan Braun chain-of-custody principle, only in expanded form.
The code would allow baseball to take certain measures, but not others. The code, if drafted properly, would limit and prohibit many of the abuses alleged by A-Rod in his lawsuit against baseball and the union.
About that suit:
The union’s player representatives wanted to kick Rodriguez out of the union for turning on his own, but could not legally pursue his expulsion, according to Yahoo! Sports.
The player reps probably did not know that A-Rod must legally establish that the union failed him to reverse his suspension in federal court, according to two attorneys covering baseball, Craig Calcaterra and Wendy Thurm.
Yes, Rodriguez’s legal team could have made its case without attacking Weiner, who died of brain cancer on Nov. 21. But one of the team’s central points – that the union should have acted to stop baseball from its “sham” lawsuit against Biogenesis – is a fair criticism, particularly in hindsight.
A-Rod’s lawsuit states, “Although MLB alleged that the defendants in the Biogenesis suit were causing harm to baseball through tortious interference, MLB’s true purpose for the Biogenesis suit was to seek ‘evidence’ that would allow MLB to publicly shame Mr. Rodriguez and to interfere with his career and business dealings.”
The lawsuit points out that independent attorneys at the time agreed with A-Rod’s position, with one from NBC Sports calling the Biogenesis suit, “a transparent and cynical attempt by MLB to obtain documents to discipline its employees, not an attempt to vindicate an actual legal injury.”
Some on the players’ side wanted the union to ask baseball to dismiss the case and file an unfair labor practice charge if it did not. Clearly, not everyone with the union understood the ramifications of the Biogenesis suit, how it eventually would lead Bosch to cut a deal with baseball.
The union also was in a tricky position, as it is always while serving as prosecutor and defendant under the JDA. The players want a clean sport. A move to stop the lawsuit against Biogenesis might have sent the opposite message.
In the end, 13 players accepted suspensions, and a 14th - A-Rod – received a record penalty from an arbitrator. None tested positive, inflating the triumph for baseball.
I’m not defending A-Rod. Based on what we know, the evidence against him is substantial. And we have yet to hear him say, under oath, that he did not use PEDs.
All I’m saying is that before the players agree to stronger penalties, they need to snap to attention and fight for their rights.
Baseball’s maneuverings are a greater challenge to them than A-Rod’s.