As
an American—as a man brought up on the Bill of Rights and habeas corpus as much as I was on baseball—I have a number of
problems with the MLB’s investigation into the Biogenesis program. Biogenesis
director Tony Bosch has agreed to cooperate with Major League Baseball as it
wishes to pursue suspensions in twenty MLB players including Alex Rodriguez and
the Milwaukee Brewers’ Ryan Braun.
Major League Baseball’s evidence
comes completely in two forms as of now: Bosch’s testimony and acquired handwritten
documents. No Major League player has ever been suspended for PEDs without
failing a drug test, and there is no reason to believe that this investigation
would be able to obtain that kind of evidence. A number of questions are raised
with the documents themselves, as Braun has stated that his name was on
strictly for pursuing legal advice from Bosch last season after he had failed a
test—a test that did not see him suspended due to a successful appeal. These
documents, as unprofessional as they may be, would likely found permissible in
a court of law, but the area is gray in whether or not they are reliable.
In the realm of “beyond reasonable
doubt”—a concept that still seems to confuse and puzzle juries today—there is
always the possibility of Rodriguez, Braun, or Melky Cabrera buying PEDs for
someone else’s use, as improbable as this explanation may be. This, while still
violating the law, would not find them worthy of suspension in Major League
Baseball’s eyes.
Bosch’s testimony itself may bring up
more questions than answers, as it is clear that he is testifying in order to
get the MLB to drop the civil suit it has against him. This is certainly
something that a good lawyer hired by these athletes can and will pick apart,
in addition to things like the lack of signatures on the documents and no
seeming way to trace any money Biogenesis received to these players.
With all these questions having been
raised, Major League Baseball may still be able to suspend these athletes.
Since they are a private organization not pursuing criminal charges against
these players as of now, they do not need evidence beyond a reasonable doubt to
suspend. While this could outrage the MLBPA and lead to perhaps more lawsuits,
it appears that Major League Baseball would be acting within legal boundaries
to perform such an action. Just because no one has been suspended without
failing a drug test does not mean that this cannot happen; it just means that the
MLB has not pursued a case with as much zeal as the one right now.
Then why the federal investigation?
Why put Bosch under sworn testimony if these athletes do not see the same
protection against Major League Baseball’s steroid witch-hunt as an alleged
murderer or rapist would get from the prosecutors? The lack of hard evidence
may very well find these athletes not guilty in a criminal court, but that will
not necessarily keep them from facing 100-game suspensions.
I have little doubt in my mind that
most if not all of these players are guilty of using performance enhancing
drugs, but that is not the point of this investigation. The MLB had no doubt
about Barry Bonds, Roger Clemens, and numerous other ex-players but was unable
to do anything there except waste tax dollars on hearings and investigations
that lasted years. This is no different, save for the fact that these players
are still playing. The reliance on federal help is still there, and the hard
evidence isn’t.
This scandal has additionally proven
to us all that Major League Baseball’s anti-drug policy has utterly failed. Players
like Yankee first baseman Mark Teixeira—teammate to alleged Biogenesis clients
Alex Rodriguez and Francisco Cervelli—have remarked upon the strictness of the MLB’s
anti-drug policy and how baseball still apparently has a PED problem. It seems
as if Major League Baseball should devote more time to adjusting its current
policy than attacking its players without any hard evidence.
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