Wednesday, August 7, 2013

A-Rod and the Rule of Law

The sports media is abuzz with the story of Alex Rodriguez, the New York Yankee third baseman, who has been handed a 211-game suspension by Major League Baseball for his link to BioGenesis -- an anti-aging clinic that fed star athletes performance-enhancing drugs -- and his alleged attempts to obtain and destroy evidence of that involvement. The suspension is slated to begin Thursday and extend through the end of the 2014 season -- by which point Rodriguez's career may be finished (he's 38 now, and his performance has been declining over the past several years: the anti-aging stuff appears not to be working very well). The suspension, if it takes effect, will likely prevent Rodriguez from making a run at the all-time home run record, which lies just 115 home runs away from his career total of 647. (Of course, most people believe that the 747 hit by Barry Bonds were PED-fueled, though that has yet to be proven.) A-Rod is appealing the suspension, and will be permitted to play while the appeal proceeds -- mixed news for Yankee fans who have grown tired of A-Rod's antics and failure to perform when it really counts but who are suffering through a frustrating season that has seen NY third baseman hit a measly four homers all year. On the same day that Rodriguez was given the 211-game suspension, twelve other players were handed 50-game suspensions (which would make them eligible to play again before the end of this season) and Ryan Braun was earlier suspended for the remainder of this season (a total of 64 games) -- all in conjunction with BioGenesis.

What does all this have to do with law? Well, aside from the thousands of dollars A-Rod is likely to spend (and probably has already spent) on lawyers in his appeal and related legal actions and the potential for baseball's antitrust exemption to be called into question once again, the unfolding events implicate fundamental questions about the rule of law about which we should care deeply -- no matter what you think about players who use PEDs to improve their production, no matter how you feel about Rodriguez as a ballplayer or a person, no matter whether you root for or against the Yankees, no matter whether you follow baseball or not.

What is called the "principle of legality" lies at the heart of the rule of law. It provides that no one can be convicted of or punished for a crime unless the law defined the crime and specified the punishment before the person engaged in the behavior under consideration. Herbert L. Packer calls this "the first principle of criminal law" and there can be no question that in the absence of this principle a system does not even qualify as a system of law. In his well-known discussion of the "inner morality of law," Lon Fuller included as fundamental principles of law "promulgation" (laws must be published and knowable by those to whom they apply) and a general prohibition of "retroactivity." The latter, of course, appears prominently in the U.S. Constitution. Article 1, Sections 9 and 10 prohibit Congress and the states from passing ex post facto laws and most state constitutions include a similar ban. An ex post facto law does one of three things: (1) it criminalizes an act that wasn't a crime when it was committed; (2) it increases the punishment for a crime after the act was committed; or (3) it takes away a defense that was available to a defendant when the act was committed. The principle of legality, and its relative the ex post facto ban, help create a predictable system within which people can conform their conduct to the requirements of the law; these principles provide individuals with fair warning about what they can and cannot do, and about what the consequences of their actions are likely to be. Failure to adhere to these principles is, as Fuller said, to fail to make law at all, though it may be something else (quite possibly something oppressive). Even if we take the view of Holmes' "bad man" -- who "does not care two straws for the action or deduction, but . . . does want to know what Massachusetts or English courts are likely to do in fact" -- if we cannot prophesy what the courts will do, we do not have law.

Now think about A-Rod. Even those with little use for Rodriguez (and such folks are legion -- he is quite possibly the most disliked player in the game by both fans and fellow players) should be concerned about the severity of the punishment meted out to him (even though Major League Baseball came up short of what would have been the "nuclear option": a lifetime ban). No punishment has been given at all to those many players from the 90s and 00s who admitted to using (or were strongly suspected of using) performance-enhancing drugs, or even to those who lied (or are suspected to have lied) to various investigative bodies, including Congress. Some of these players have a legitimate shot at being voted into the Hall of Fame; some apologized and continued to play; some are now coaches. Of course, the rules were somewhat different then -- and the principle of legality would suggest that these players should not be punished for doing something (using PEDs) that was not against the rules of their day (at least at the beginning). But even those who have been caught red-handed in recent years have only been suspended for a couple of months at most. The severest penalty yet was that given to Braun -- he was suspended for the rest of the year and his reputation with players and fans is ruined. But Braun had been caught before, suspended, and won an appeal with protestations of innocence that turn out now to be outright lies -- factors that surely added to the severity of his punishment. The 50-game suspensions given the other BioGenesis clients were consistent with the Joint Drug Agreement between the league and the players union. Setting aside the lifetime bans meted out to Pete Rose and "Shoeless Joe" Jackson (and others) for gambling -- bans frequently and justifiably criticized -- Rodriguez's 211-game suspension is more than twice as long as any other suspension in baseball history, as Matt Schiavenza notes in The Atlantic

Rodriguez strikes me as the prototypical Holmesian bad man (as does Bonds): certain that he can get away with it and willing to do virtually anything to ensure that he does. Assume for the moment that he possessed PEDs supplied by BioGenesis. One can imagine him sitting down with his "advisers" and trying to figure out how to behave. What he wants to know (as Holmes saw) is where the lines are -- what the courts will do in fact -- so he can tailor his conduct to fall just within the lines, or include the expected punishment within his utilitarian calculation of costs and benefits in order to decide what to do. A-Rod evidently discounted the probability of getting caught -- as bad men are wont to do -- but concluded, based on the precedents, that the punishment would not be severe enough to outweigh the expected benefits from his enhanced performance. He had no reason to expect -- nor could his lawyers have anticipated -- that he would be suspended for 211 games if caught; something more on the order of 50 or 60 games would have been expected. So the system failed to provide him with fair warning of the consequences of his actions. And increasing the punishment after the acts have been committed, as noted above, is to transgress the prohibition on ex post facto rules. Throwing the book at an offender does not mean throwing the rest of the library at him, too; the "book" lies within covers set by the promulgated (or experiential) limits of the sanction. And there seems to be no particular reason to throw the book at A-Rod other than that he's an easy target: disliked, haughty, egotistical, too often in the limelight for the wrong things. Braun's punishment, it seems to me, falls within the covers of the book; A-Rod's does not.

But there's more. In this instance, the rules themselves were unclear. Rodriguez appears to be suspended for being linked to BioGenesis, on the testimony of one, unreliable witness (the clinic's founder, Tony Bosch), without ever having failed a drug test (the necessary basis for suspension under the JDA). And baseball throughout its history has been afflicted with the same sorts of drunks, criminals, and jerks that inhabit the playing surfaces of other major sports -- and baseball has mostly turned a blind eye to their off-field behavior. (The exceptions had to do with cocaine use and gambling -- the former illegal and the latter cutting at the heart of the very idea of sports competition.) So what rule did A-Rod violate exactly? Or better stated, what rule can we prove that he violated? Doesn't it seem outrageous to levy a year-and-a-half suspension on a player who has not yet been "convicted" of anything other than being a poor example and a self-centered prima donna?

At some point, Major League Baseball needs to say that "from this time forward anyone who uses performance enhancing drugs on a specified list is done for good." But it has to be prospective not retroactive. The "clean" players, who are finally speaking up, are right: the only way to clean up the game, to stop the use of PEDs, is to make the penalties so severe that even the bad men won't run the risk. Even that probably won't work perfectly; the bad guys are always one step ahead of the cops, in sports as in society in general. There are always those who think they can get away with it; and always those who will do the calculation and decide to break the rules. But to levy a major, career-ending suspension now, prior to the promulgation of the "done for good" rule, against one prominent player, when no one had good reason to think that penalty was forthcoming, seems unfair. 

OK, you're saying that this is baseball not the legal system, and things can be different in the private than in the public sphere. But to draw a rigid distinction between public and private, between baseball and the law, has its risks. The rule of law requires strict adherence to the principle of legality, and to the prohibition against ex post facto laws. As citizens we should be on our guard against those -- whether they be public officials or semi-public officials, government agents or "rulers" of large semi-private associations (like baseball commissioners) -- who would tell us it's alright to violate the fundamental principles upon which our polity is based. Madison hoped that each citizen would be "an Argus to espy" those who would trample on constitutional principles. When Madison spoke of these principles, he meant to include more than the words of the constitutional text, for our constitution encompasses the basic commitments of our way of life as a people embarked on a common voyage. Read in that way, constitutional principles include foundational features of the rule of law such as the principle of legality. Bud Selig, the baseball commissioner, frequently talks about how baseball should use its enormous influence to provide positive examples of proper behavior to old and young alike (though especially, of course, to the young). If he really believes that, if it is not just jargon or bluster, he should be concerned about the lessons being taught by a system that permits punishments that far exceed what could have been predicted by the baddest of men and their advisers -- and permits those punishments to be handed out on the basis of unclear rules, questionable testimony, and general dislike of particular persons. And as citizens, we should recognize what is going on and we should be willing to speak out against violations of fundamental principles even when they occur outside the legal system -- lest we develop the habit of ignoring those principles in the public as we do in the private realm. For that way lies disaster.