Major League Baseball

PED probe unseemly, tough to avoid

Published Jul. 10, 2013 1:00 a.m. ET

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Ken Rosenthal

I hate baseball’s investigation of Biogenesis.

Hate that the sport paid for evidence, according to Porter Fischer, a former associate of Biogenesis founder Tony Bosch. Hate that baseball's top officials buddied up to Bosch — an alleged drug dealer — in exchange for his cooperation. Hate that commissioner Bud Selig effectively has become some kind of 21st century version of Javert, the high-and-mighty police inspector from "Les Miserables."

The whole thing is — shall we say it? — unseemly, even a witch hunt. I would not be surprised if baseball’s relationship with the players union — a relationship that took nearly two decades to repair after the strike of 1994-95 — is damaged in some meaningful fashion.

Still, even if you consider the sport’s behavior to be unethical, what was the alternative? What were Selig and Co. supposed to do when presented with a veritable treasure trove of evidence about certain players’ use of performance-enhancing drugs? Burn it?

If that had happened, I can guarantee you that I would have ripped baseball for willfully ignoring the players’ misconduct and hiding behind testing as the sole basis for disciplining PED users. I also can guarantee you that I would not have been alone.

So, while baseball does not exactly deserve applause for getting dirty in its war on drugs, the simple reality is that Selig and Co. felt they had little choice, knowing how the game is played.

Is Selig trying to polish his legacy? Absolutely.

Might the sport pay a price if an arbitrator determines that it acted improperly? Quite possibly.

But can one express moral outrage over baseball’s conduct if one would have been equally outraged by the sport doing nothing?

That’s where I’m torn.

Some say that none of this is baseball’s business, that the sport shouldn’t dabble in law enforcement, much less attack its own product. But tell it to the non-users who want the cheaters punished, who are sick of being tainted by the actions of others, who are fed up with all of the lying by some of their peers.

If not for the cheaters, the alleged clients of Biogenesis, none of this would be necessary; if not for their apparent deceit, baseball would not have flipped out. Let’s not get into a question of moral equivalence. Baseball bought Biogenesis records as part of its investigation into the now-defunct anti-aging clinic. Representatives of Alex Rodriguez bought records, according to The New York Times, with the idea of destroying them.

In any case, the non-users are the people who matter most, not the disenchanted fans, the strident media or the crusading commissioner. But such is the hysteria surrounding this issue, the true victims get lost, the facts obscured.

Let’s get a few things straight, shall we?

• Baseball will find it difficult to justify 100-game suspensions for Rodriguez and Ryan Braun.

The 50-game, 100-game and lifetime penalties are for first, second and third positive tests. The Biogenesis suspensions would be for “just cause,” as determined by the commissioner’s office. The JDA does not specify the length of such penalties, which would be administered on a case-by-case basis, according to the source.

The penalties would be based largely on two factors, the source said: precedent (whether a previous player had done something similar) and past conduct (whether the player had committed prior offenses).

The idea of two 50-game penalties — one for the infraction, the other for lying about it — would not apply to Biogenesis suspensions, according to a union source.

Neither Rodriguez nor Braun has been previously disciplined under the Joint Drug Agreement.

• Players under investigation are not obligated to answer questions from baseball officials.

Braun, according to ESPN, refused to answer questions during his recent interview with baseball. He was not the only player who stayed silent, sources say. And he had every right to avoid incriminating himself, according to baseball precedent.

In September 1980, former commissioner Bowie Kuhn suspended Ferguson Jenkins for declining to cooperate with baseball’s investigation after the pitcher was charged with possession of cocaine, hashish and marijuana in Toronto. An arbitrator lifted the suspension, according to the Associated Press, saying that “the commissioner was compelling Jenkins to jeopardize his defense in court.”

Braun and others, by failing to answer questions, simply asserted their “Jenkins” rights.

• Resolution is not coming anytime soon.

People hear the word “suspension.” They hear that baseball could act after the All-Star break. And they think: Players will be lost to their teams right away.

No.

First-time offenders could continue playing while appealing their penalties. And, as I reported on June 22, the JDA enables baseball to announce suspensions for “just cause” before the appeals process begins — if the allegations against the players previously had been made public by outside sources, as these allegations have.

So, if more than 20 players are expected to be suspended, as ESPN suggested on Tuesday, then baseball could face more than 20 appeals. All would be heard by a single arbitrator, Fredric Horowitz, sources say. And Horowitz, who is in demand outside of baseball, will find it difficult, if not impossible, to clear more than 20 consecutive days in his schedule.

Thus, the process figures to be drawn out — and in baseball’s view, if players in pennant races are affected, so be it. When pitcher J.C. Romero tested positive in 2008, his arbitration hearing was held during the first two days of the World Series — while his team, the Philadelphia Phillies, was playing in the Series against the Tampa Bay Rays.

Think about it: Why should baseball deliberately postpone the appeal of a player on a contender until the offseason, and risk that player becoming the MVP of the World Series? The way baseball sees it, the cheaters made their choice — and the timing of the consequences is their problem.

This is where the sport is now, in this uncertain, uncomfortable and, yes, unseemly place. I hate baseball’s investigation. I hate the users for gaining a competitive advantage over the non-users. And I don’t expect to feel better about any of it anytime soon.

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