Why the writers have pushed MLB too far with Biogenesis

Some claim that university professors live in an “ivory tower.”  In certain ways, though, baseball writers are worse.  They obsess about the minutiae of a pastime, whether so-and-so is “clutch” or what so-and-so said about another team.  What these baseball writers seemingly forget is the world outside sports — a world where the questions dominating sports headlines show themselves to be the trivial matters that they really are.

Since I like reading baseball articles, I rarely have a problem with the ivory tower attitude.  That is, at least until I stumble upon a story more important than just baseball. The Biogenesis scandal is the latest example.  Biogenesis is the name of the Miami-based clinic that allegedly supplied performance-enhancing drugs to a number of baseball players, including Alex Rodriquez and Ryan Braun.  Major League Baseball is taking a hardline, proactive stance.  Braun has been hit with a 65 game suspension.  Rodriquez’s suspension is a nearly unfathomable 211 games, currently under appeal.  Both suspensions, obviously, are above the mandated 50 game suspension for first time offenders as written into baseball’s collective bargaining agreement.  Clearly, the Commissioner’s office is trying to make Biogenesis a landmark case against PED usage.

As far as I can tell, general outrage seems directed more at players than at MLB.  Predictably, overly vitriolic baseball (“look at me!”) writers are throwing around comments like “arrogant” and “cheating” and “disrespecting the game.”   Commentary on Alex Rodriquex has been particularly harsh, insofar as he’s a particularly disliked player — even though he has never never committed tax fraud, violent crime, domestic abuse, or driven drunk.  MLB, however, has gotten a relatively free pass.  Reactions range from approval to (at most) some disquiet about the practical merits of their cases against the players.

This is where the “ivory tower” attitude of baseball writing seems most culpable.  Since the dawn of the “steroid era,” baseball writers have ceaselessly attacked Bud Selig’s and MLB’s inaction.  Yes, the players took the PEDs, but the Powers-That-Be winked and looked the other way.  (Rarely do the journalists blame themselves.)  What is praise-worthy is that Selig et al  took those criticisms to heart.  Motivated by baseball writer histrionics, MLB has cracked down more harshly on PED use than all the other major American sports combined. Responding late is better than never responding at all.  They did their jobs, and I have no issue with MLB for that.

What I never hear from the writers, however, concerns the fundamental justice of MLB’s current efforts.  A few, of course, have cynically sneered at MLB’s crackdown, suggesting that MLB is overcompensating for years of neglect.  While possibly true, such a critique seems unfair — why criticize MLB for failure to act and then give them no credit for responding to our criticisms?  That’s exactly how public discourse is supposed to work.  People talk about issues; the Powers-That-Be respond.  Congratulations all around.  Still — and this is the heart of the issue — we have to ask, “Have the baseball writers pushed MLB too far?”  That is to say, in efforts to make MLB get “tougher” against PEDs (which is much like asking a politician if we should get “tougher” on crime), we may be enabling MLB to go in a disturbing direction, far beyond the bonds of where any private, for-profit corporation should go.

Let me put the situation in this light.  Regardless of one’s opinion about PED-usage among players, the fact remains that PED usage is both non-violent and victimless.  (And let’s not disrespect  real victims of crimes by saying that Barry Bonds’s “tainted” records victimize fans.)  So the employers of accused players, in order to forestall the bad press of those non-violent and victimless actions, take legal matters into their own hands.  To that end these employers willingly launch investigations, offer “deals” to people like Tony Bosch, and subpoena records from Federal Express, AT&T Mobility and T-Mobile USA to use as leverage against their employees. Such investigations might be necessary if this was, let’s say, a case of possible illegal racial discrimination or sexual harassment, and MLB wanted to avoid a lawsuit.  Unfortunately, MBL’s investigations stem only from a fear of bad public relations — and using a tortuous logic slap a 211-game suspension on Rodriquez is more than quadruple the agreed upon penalty.

Put yourself in the position of these players.  How many of you would feel comfortable giving their bosses that much power over them?  Too many fans seem to think that baseball is a “fake” job subject to different rules from normal jobs; baseball customers feel a greater sense of entitlement than Apple or Microsoft customers do.   Thus their peculiar brand of outrage and indignation.  They blame the players and want MLB to do something about it — in their anger never asking if employers should have that right.  To a business like MLB, “protecting the game” is simply another way of saying “protecting our positive PR,” and we all know that protecting PR is just a way of protecting profits.  As much as Bud Selig et al care about the steroids issue, and I honestly believe they do, the consideration of money is not far from their minds.  Baseball writers, however, seeing baseball through the lens of fans, tend not to see the problem in economic terms.  They see it as a moral issue. Their indignation is not about spreadsheets. Yet this indignation gives MLB a rationale for targeting its employees in order to protect and even enhance its historically-high profits.

And the baseball writers never ask themselves, “If my own boss — my editor — found something I had done, which was both non-violent and victimless, to be potentially threatening to the company’s bottom line, would I condone them doing to me what MLB is doing to Ryan Braun, Alex Rodriquex, and everyone else linked to PEDs and Biogenesis?”

To be sure, baseball players are much luckier than average people.  Their wealth — and their union — gives them more leverage than regular schmucks like us.  Yet their ability to stand up for themselves has limits.  In the end, rich as they are, they cannot ever completely match the clout and power of MLB.  When Ryan Braun failed his drug test at the end of 2012, his case was arbitrated by third-party arbitrator Shyam Das.  When Das — following the rules of the collective bargaining agreement — failed to rule against Braun because of a technicality, MLB fired him.  The corruption implicit in such a maneuver is stunning.  Arbitration was Braun’s right, just like it is the right of any U.S. citizen accused of a crime to be judged by a jury of his peers.  MLB basically fired the “judge” for following the law.  Technicalities are not just there to let criminals go; they exist — both in arbitration and in courts — to protect the fundamental rights of relatively powerless individuals against powerful entities like a government or private corporation.  Firing Das undermines the entire notion of judicial objectivity.  Luckily, Das was brave enough to enforce the rules properly, regardless of personal consequences, but who knows if the same will apply to the next arbitrator, Fredric Horowitz.  Protecting such objectivity is the reason that Supreme Court justices have life tenure.

And MLB does have major financial stakes in these decisions.  It is not just about “protecting the game.” An A-Rod suspension or voided contract would save the New York Yankees tens of millions of dollars.  An attempt was made to void Jason Giambi’s contract when he admitted to PED use. And MLB refused to honor Bonds’s homerun chase partly out of fear for increased public scrutiny on PED usage in baseball.  While the San Francisco Giants themselves profited immensely from the homerun chase, the rest of baseball suffered quite terribly — a true public relations nightmare.  Increasingly, as MLB extends its power over the private lives of its employees (many of whom of free American citizens), we must ask ourselves to what extent we, as baseball fans, are willing to see a private business usurp the prerogatives of our judicial system.  Spurred on by a decade of baseball writer histrionics, MLB no longer has any motivation in protecting the fundamental rights of its employees.  Instead, they are seeking to do everything in their legal power to further their own private interests.  This is not a precedent we should be happy to see established, either as baseball fans or American citizens.

Of course, it’s difficult to defend athletes in a post-Lance Armstrong age.  I stoutly defended Armstrong for years, not so much because I believed him innocent as because he passed every single drug test given him by his sport. Innocent until proven guilty: no exceptions.  That is a foundation of legal justice.  So I was outraged when bicycling banned Armstrong for life and stripped him of his Tour de France titles.  After all, what else could an “innocent” man have done besides pass drug tests?  The United States Anti-Doping Agency was eventually vindicated, of course. Armstrong confessed his sins on Oprah (of all places).  Despite the unquestionable good Armstrong has done combating cancer, his confession irrevocably eradicated  his good name.  What Armstrong did was worse than simply taking drugs — which, after all, is still a non-violent and victimless crime.  Armstrong engendered a vast conspiracy of silence and corruption.  Doctors charged with testing had to collaborate with Armstrong; Armstrong’s teammates dared not speak for fear of ostracization and ruined careers. Using PEDs does not affect the integrity of the game; corrupting the testing-system through semi-mafia tactics certainly does. Barry Bonds or Alex Rodriquez, for all their unlike-ability, never went to such lengths.

MLB will never receive the same level of vindication that the United States Anti-Doping Agency received with Armstrong.  MLB’s alleged PED users are simply not as corrupt as Armstrong.  (Melky Cabrera’s “fake website” was laughably pathetic but not heinous.)  Bonds and Rodriguez are jerks but nothing more.  Worse, Braun seems like a decent guy (despite some recent stories), and Mark McGwire remains one of the most humble, self-effacing sports athletes I have ever seen.  MLB is not unmasking some Machiavellian doping cover-up but only a few transactions with a seedy Miami health clinic.  Yet MLB’s response is greatly overshooting the nature of the new offenses.  A decade of hyperbolic outrage by baseball writers have spurred MLB into acquiring a power that no private, for-profit corporation should have over the lives of its employees — a power that includes punishments almost without limit.  What would we say about a judge who arbitrarily doubled the legally mandated maximum punishment for a crime?

We need to be cautioned by the case of Carlos Acevedo.  MLB named him in a suit with Tony Bosch and three others linked to Biogenesis.  According to Acevedo’s lawyers, MLB “bullied” his client, sending “investigators to his house to bang on the door. . . threatening him and intimidating him. It is like they think they are the federal government.”  Acevedo intends to fight MLB’s tactics because he (again according to his lawyer) is a “broke, broke, broke little nothing individual.”  Even with the caution that we should never take anything a lawyer says at face value, this particular quote is gut-wrenching.  I can only suppose that, being broke and in trouble, Carlos Acevedo has little else except pride.  And I cannot help but admire Acevedo for his willingness to stand up to MLB on this issue, so much more important that just another sports story — a story that seems to pit the rights of private individuals against the financial interests of private companies.

Dennis Wise is a graduate student and a lifelong Cleveland Indians fan.