The Arbitrator's decision is pretty good, but I think there are some grounds for attack. My instinct is he would be more successful if he simply focused on the JDA instead of all this nonsense about grudges and agendas. Also, given the wide discretion that arbitrators get, all his evidence-based arguments will likely go nowhere. That said, I think there's a kernel of an argument in there that (don't shoot me) I actually find substantial. The basic point is that the arbitrators relied on a short, vague nonspecific provision in the JDA to impose a discipline more severe than exists for violations confirmed by testing. No matter how bad the evidence seems to be, a sanction based on a valid objective test is always more reliable than testimony, hearsay, or circumstantial, or even noncircumstantial evidence. The arbitrator's decision to interpret the JDA in this manner is an unreasonable reading. That's the short version. For the long version, I'll try to lay out the basics of my argument, but a post here won't do them justice. Anyway, it goes like this:
1) The arbitrator's sanction was based, entirely, on JDA Section 7.G.2 "Other Violation". We can all debate whether there exist elsewhere in baseball documents some other basis or bases that would support a 162-game plus post-season suspension, but those are not the bases on which the arbitrator ruled, so they do not matter on appeal. Section 7.G.2, in its entirety, provides: "A Player may be subjected to disciplinary action for just cause by the Commissioner for any Player violation of Section 2 above not reference in Section 7.A. through 7.F above."
2) The arbitrators and MLB read this to mean any drug violation other than one confirmed by testing can be punished outside the 50/100/Lifetime framework. This is too narrow a reading of the JDA. If the sanction ultimately is to be imposed because of a finding that the player used a PES, it should be governed by 7.A through 7.F. The catchall applies only if the violation of the JDA is something wholly different. Put another way, it is arbitrary, capricious, and irrational to make discipline for the exact same conduct (that is, use of a PES) different, depending merely on the happenstance of how the conduct was determined. A player who is found to have used a PES by testing should not be treated differently from a player who is found to have used a PES through some other detection method, or based on testimony. Not only is the abritrators' reading arbitrary and capricious, it also is negated by two principles of contract interpretation: (1) the specific trumps the general, and (2) where drafters have included a specific exception to a rule, it should be presumed they did not intend other exceptions, because they obviously know how to include them when they want them. This one is a bit more complicated, but essentially, the JDA does contain provisions in section 7 itself for one particular scenario in which enhanced punishment is imposed for use of PES where the method of detection is one other than testing. Specifically, the first and second offense penalties are increased to 60 and 120 days if the evidence of possession or use is conviction of a crime. Section 7.E. So, where the legal system has to get dragged in, MLB has imposed an extra 10 and 20 days on the typical punishment. Clearly MLB knows how to imposed increased penalties for use of PES when it wants to. If it had wanted to write Section 7.G.2 to mean, as it claims -- "where the player has used a PES as confirmed by evidence but not by testing" -- it could have done that.
3) That this is an irrational reading of the JDA is further established by the fact that courts should not read contracts to give them unreasonable meanings. Why should a violation that is based on use of a PES established by some measure of evidence other than testing require a more severe sanction? Especially where the JDA establishes, when the method of detection is full blown conviction under the criminal burden of proof, only a tack on of 10 and 20 games to the first and second violation?
4) The arbitrators' decision is also arbitrary and capricious, because it imposed the equivalent of a progressive sanction based on a finding of three PES uses, even though no notice of intent to sanction, or sanction, had been given for the first or second use. The arbitrators did not disagree, but found this analysis to be compelled by Section 7.L of the JDA, which relates to notices of violation. The arbitrators read that provision to mean that so long as the three substances are different substances, progressive sanctions can be imposed even without notice. A hypothetical illustrates why this is an unreasonable reading. Imagine that a player fails three tests, each for a different substance, and is given notice all at once. Would this result in a lifetime ban? It would have to under the arbitrators' and MLB's reasoning. This can't be what the JDA was intended to do, and thus is an unreasonable reading. Part of the notice requirement is to give the athlete notice that if he screws up again, he's going to get hammered worse. This is a key element of a progressive sanction scheme -- it must give the accused the opportunity to conform his conduct in the future after the first and second violation. Here, MLB aggregated three past violations and imposed a progressive sanction.
That would be my argument. I can say more, but this is too long already. I actually feel like 1-3 are good points, but it starts to break down at part 4.
