Friday, 7 June 2013

On Melky Cabrera and Double Jeopardy

In case you happen to be the person out there that hasn't heard, BioGenesis, its shady founder Tony Bosch, and his stable of famous (and not so famous) "clients" are back in the news this week following reports that MLB intends to go hard after those linked to PEDs in previously uncovered documents. I don't intend to get into all the specifics here, so I encourage you to read the linked article above for the back story.  You know... in case the rock you live under lacks cable television or an internet connection (in which case I guess you wouldn't be here, but I digress).

The list is headlined by superstars Alex Rodriguez and Ryan Braun, but also includes a number of other players ranging from familiar names to fringe major leaguers to players that have yet to play a single game in the bigs.  I also don't intend to wade into the fray that is MLB's PED policy.  It's been done to death and I'm sure there will be no shortage of opportunities to do so in the near future.  I would like to focus on the Blue Jays' connection in this case.  Also named on the list is our shiny new left fielder Melky Cabrera who (and I'm talking to the rock dwelling among you again) served a 50 game suspension last season for testing positive for elevated levels of testosterone.

Like I said, I don't intend to argue whether MLB's penalties are too lax, too harsh or just right.  However, I would like to talk about the issue of double jeopardy and how it pertains to Melky (and to prove I'm not just a homer, Yasmani Grandal and Bartolo Colon who are in the same situation).  If you're unfamiliar with the concept, double jeopardy refers to protection from being prosecuted twice for the same crime and is a generally accepted principle in respectable legal systems the world over.  In the Canadian Charter of Rights and Freedoms it is Article 11 (h) which reads "if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again".

The reason it applies is because MLB is allegedly seeking suspensions for those named in the BioGenesis documents, and those documents contain the names of players, like Melky, who have already served a suspension for testing positive for PEDs.  Your first instinct might be to shrug and say "Well Melky's done his time, they'll leave him alone" and in my humble opinion you'd be entirely reasonable for doing so.  However, MLB is reportedly seeking 100 game suspensions for Braun and A-Rod.  In case you're unfamiliar with the JDA, 100 games is the penalty for a second offense and MLB plans to contend that Braun and A-Rod have each committed two offenses, using PEDs and then lying about it to MLB.  If you recall, Melky (or someone associated with him) concocted a fraudulent website advertising a fictitious but legal product in an attempt to claim he took something accidentally.  Well if that doesn't count as lying, I don't know what does.  In fact, it's going to far greater lengths to lie to MLB than A-Rod or Braun ever did.  Will this open Melky up to further punishment?  If so, why didn't they pursue it at the time?  As it stands there is no precedent for it, but if MLB intends to treat lying about PEDs as a separate offense and makes it stick to those two, one could be created.

I think this is woefully misguided for a number of reasons, none of which have to do with my feelings on the general harshness or lack there of in MLB's drug policy.

One viewpoint is that the BioGenesis documents indicate repeated violations of the JDA over a prolonged period of time and should therefore be subject to treatment as multiple offenses.  To me, this reflects a total lack of understanding of how PEDs are used and how they work.  It conjures images of Popeye downing a can of spinach in the clubhouse before a game and immediately turning into some superhuman, baseball mashing mutant.  That isn't how it works.  PEDs are basically workout enhancers.  In general terms, they allow you to work out harder and more often by enhancing recovery, and increase the amount of muscle built during recovery.  You still have to use the drugs and work out for a period of months to reap the benefits.  Therefore, every failed PED test in the history of MLB drug testing indicates repeated violations of the JDA over a prolonged period of time.  Every single one.  They've all been treated as a single offense in the past.  Why should that change now?

Secondly, the vast majority of drug suspensions are appealed.  One would imagine that in the majority of cases the player is completely aware of whether or not they have used PEDs.  If a player who fails a test appeals the result while fully aware of their own guilt is it not an elaborate lie cloaked in legal proceedings?  We don't charge criminals for entering a not guilty plea when on trial for a crime they are fully aware of committing, unless they specifically lie under oath.  It's the prosecution's job to make charges stick.  You can't be charged for not confessing a crime once charged, or for vigorously defending yourself against the charge.

The third point is the fuzziest, but also the one I find most interesting to think of.  In previous instances, Major League Baseball has been treated as a sort of cultural touchstone for America.  Whether it's MLB's longstanding antitrust exemption or Congressional hearings into steroids in baseball, Major League Baseball is intricately woven into the fabric of American society in a way that no other professional sport has been and it has largely been treated as such by courts and lawmakers.

This has also come up in MLB's various declarations against PEDs in the sport.  They claim to be standing up for American ideals of fairness and sportsmanship in America's National Pastime.  Well I would argue that such a stance cuts both ways.  I will be the first to acknowledge that an MLB panel is not a court of law, and that the burden of proof need not be as onerous.  However, can an American institution claim to be upholding one set of dearly held values while simultaneously defecating all over others?

In order to make a run at Braun and A-Rod, MLB has gotten into bed with Tony Bosch, whose testimony would be absolutely shredded by any attorney worth their salt.  In exchange for his cooperation, MLB has dropped their own lawsuit against him and promised to put in a good word with the government should they seek to prosecute him for his own crimes.  I'm not saying his testimony is fraudulent, but his motivations will certainly be called into question and I believe rightfully so.  He stands to benefit personally from his cooperation.  He is little more than a jailhouse snitch, of dubious reliability at best.  Additionally, they will essentially be changing the rules of the game on Braun and A-Rod as they would be the first players to take a 100 game suspension for a first offense, one incurred without even a failed test (depending, of course, on how you count Braun's appealed test), and would also be the first players to have their denial of PED use treated as a separate offense from the use itself and be punished as such.

If Major League Baseball is to take a moral and ethical stand against PEDs in baseball, I believe that they must also take one in how they pursue those they suspect of cheating or else they risk appearing as hypocrites.  If Major League Baseball is to benefit from its position as a respected American cultural institution (and they have), they should be striving to adhere to American cultural standards of justice as they act to protect that position.  Regardless of how you feel about PEDs and MLB's penalties for their use, anything less than this is hypocrisy and should not be tolerated, let alone celebrated.

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