The Daily News has reported that Alex Rodriguez is pursuing a lack-of-knowledge defense in his challenge to his 211-game suspension. According to the News, he is arguing that he thought the substances he obtained from Biogenesis were legal supplements, not PEDs. This defense is both clever and risky.
This defense is based on a provision in the Joint Drug Program that provides:
A Player is not in violation of the Program if the presence of the Prohibited Substances in his test result was not due to his fault or negligence. The Player has the burden of establishing this defense. A Player cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial...
Rodriguez's lawyers must interpret this to mean that if a player uses a PED thinking it is a legal supplement, his use is not "due to his fault or negligence." By its literal terms, this provision is limited to challenges to test results, so it remains to be seen if it also extends to so-called non-analytical cases. The Joint Agreement makes this an affirmative defense. That means Rodriguez bears the burden of proving it and must produce "objective evidence" to support his claim. His word alone is not enough.
Note carefully what Rodriguez can and cannot argue. Because the Joint Program contains an exhaustive list of banned substances, Rodriguez cannot prevail by claiming that he knew what he was taking but didn't realize it was on the list of banned substances. Failing to check would probably be considered fault or negligence. He will have to claim that he asked for a legal supplement but was given a banned substance instead. If he didn't bother to ascertain what he was taking, that would probably be considered fault or negligence.
This defense is clever but risky. It's clever because it gives an innocuous explanation for Rodriguez's dealings with Biogenesis and Anthony Bosch. It's risky because it concedes Rodriguez's dealings with Bosch. He cannot claim that the entire matter was a fairy tale concocted by Bosch. Further, the more the defense shows that Bosch is an unsavory character, the more the question arises of why Rodriguez would choose to deal with someone like that if he wanted only legal supplements.
Will this defense work? We can't predict because we don't know what evidence MLB has and what evidence Rodriguez's lawyers have. There are, however, inherent problems.
First, why would Rodriguez go to a shady storefront anti-aging clinic for legal supplements? If you want legal supplements, you go to the team doctor or GNC. The team doctor is familiar with the Joint Program and would be careful not to give you anything that is banned. If you ask the seller for legal supplements, why would he give you banned substances?
Second, what "objective evidence" does Rodriguez have to show that he thought he was getting legal supplements?
Third, how were Rodriguez's dealings with Bosch conducted? If they were conducted in a surreptitious manner, just as you would expect an illegal drug transaction to be conducted, Rodriguez has a problem. How much did Rodriguez pay for these substances? If the price was out of line for what one would pay for legal supplements, he has a problem. Those would be strong indications that he was seeking something other than legal supplements.
Fourth, MLB has alleged that Rodriguez obstructed its investigation. This is classic guilty-mind evidence. Why would Rodriguez obstruct the investigation if he thought the only thing he was guilty of was trying to get legal supplements?
Finally, the fact-finder is arbitrator Frederic Horowitz, not a jury. Horowitz is an experienced arbitrator who has been around the block a time or two. He cannot be fooled as easily as a jury.
This defense may help explain Rodriguez's attacks on the Yankee team doctors this summer. Those attacks may have been a tactical move to help set up his defense. If the arbitrator asks why Rodriguez didn't go to the team doctors for supplements, he may claim that he didn't trust them because he thought they were part of a grand conspiracy to force him to retire.