J.C. Romero Suspended 50 Games; Questionable Judgments Abound

There has been a lot of very good reporting, especially by Peter Gammons and Rob Neyer of ESPN.com, David Murphy of The Philadelphia Inquirer, Will Carroll of Baseball Prospectus, and Eric Seidman covering the case of Philadelphia reliever J.C. Romero’s 50-game suspension by major-league baseball for taking a banned substance.  If you’re not familiar with the story, here are the basics.  Romero took an over-the-counter supplement last September, 6-OXO Extreme, a product of Ergopharm owned and operated by Patrick Arnold who designed THG, or “the clear.” 6-OXO Extreme increases the body’s testosterone production as an anabolic steroid would.  Romero argued that at the time, this substance was not banned by MLB, and he testified before an arbitrator that he had cleared it with two nutritionists, and checked with the MLBPA, before taking it.  The MLBPA denies having known about the issue before the positive test result.  Gammons reports that there was conflicting testimony between Romero and Phillies strength and conditioning coach Doug Lien about what course of action Romero was told to take with 6-OXO, with Romero saying Lien told him to “get a second opinion,” and Lien testifying that he told Romero not to take it.  After being randomly tested August 26 and September 19, Romero was informed that he had tested positive, prompting him to stop taking any supplements.  After being re-tested October 1, Romero tested negative.  However, when the second test on Romero’s previous positive sample was tested October 12, (urine samples for drug tests are routinely split in two, with re-testing of initial positive tests done later to safeguard against false positives), it confirmed Romero’s initial sample was indeed positive.  After a series of offers between MLB and Romero about the length of a suspension, its inception, and admitting guilt, Romero decided to fight a 50-game suspension through arbitration, no doubt through consultation with the MLBPA.  Though I have neither read nor found online the arbitrator’s decision on this case, I am not sure exactly what the rationale was for the decision rendered–though I surmise about a few possibilities below.  What is clear is that Romero has lost his case and will begin his 50-game suspension at the beginning of the 2009 season.

Romero, joined during the case by the Players’ Association, has maintained that he unknowingly took what was not initially considered a banned substance, one that was later determined to be so, that he followed the proper routes to learn about what was banned, and that the label of the bottle of 6-OXO–which he produced at the arbitration hearing–did not contain the warning I’ve included below warning users, “Use of this product may be banned by some athletic or government associations.”  According to Gammons, Romero also claimed that, in addition to checking with two nutritionists–and problematically for Romero not the 1-800 drug hotline that MLB says it provides–he was told afterward by the Players’ Association that since the product was purchased over the counter, the MLBPA felt that the case would be dropped.  The MLBPA released a statement yesterday denying that it knew ahead of time that 6-OXO contained traces of a banned substance, or that it had advised players on the safety of such substances.  However, the Association’s statement did not address what Gammons wrote–that the rationale for the MLBPA’s opposition was at least in part this product’s over-the-counter status.

It’s impossible for any of us to verify whether or not Romero believed that 6-OXO was a legitimate supplement.  However, I strongly suspect that his not calling baseball’s drug hotline was what resulted in the arbitrator’s decision against Romero.  According to Rob Manfred, baseball’s executive vice-president in charge of labor relations and human resources, several players had called the hotline asking about 6-OXO and were told that “the product was not in compliance with the drug policy,” Murphy reported in the Inquirer.  As Murphy wrote, questions about 6-OXO’s contents and consequences were not new, either.  Peter Van Eenoo and Frans T. Delbeke of Ghent University co-authored an article in the November 2006 Journal of Steroid Biochemistry and Molecular Biology arguing that, after testing urine samples, 6-OXO contained amounts of androstenedione–the same andro that was in Mark McGwire’s supplements back in 1998. {“Metabolism and excretion of anabolic steroids in doping control–New steroids and new insights,” JSB&MB, Volume 101 (November 2006), 167} That is, Manfred claims that there was information available to Romero that this product was not safe for him to use.  In fact, Van Eenoo and Delbeke explicity classify 6-OXO–androstenedione as a steroid, not an innocuous-sounding “supplement.” {161}    Additionally, although the label on the bottle that Romero purchased did not contain the word androstenedione, other bottles do, including one that major-league baseball produced during the arbitration case.  Moreover, according to “Major League Baseball’s Joint Drug Prevention and Treatment Program,” Section 2 B, page 5, androstenedione is clearly listed as #4 in a list of “Performance Enhancing Substances covered by the Program.”  Manfred told Murphy that, every Spring,

players are shown a DVD that spells out the dangers of OTC supplements.  They are given a list of 12 manufacturers that have submitted products that have been tested and approved.  They are provided with both a Web site and a 1-800 hotline that answers questions about specific substances.

If so, and the MLBPA website contains a link to a website showing an NSF-Approved Supplements List, that clearly would not have helped Romero’s case. Not having read this arbitration decision but having read many arbitration decisions in union-company disputes, my strong suspicion is that the arbitrator may have ruled against Romero, determining that he did not follow the correct avenues of information for using this “supplement,” and/or did not exhaust his options and opportunities to adequately determine whether or not to use it, because he did not consult this hotline.  His losing the case may well be the direct result of not having followed proper protocol.

However, something about this case is not clear-cut to me.  Gammons reports some very interesting details about Romero’s case and argument.

In Romero’s arbitration hearing that was held in Tampa, Fla., during the first two days of the World Series, it was claimed that, in early July, the National Center for Drug Free Sport had notified MLB of questions about the supplement Romero had purchased. Somehow, MLB and the players’ association never got that straight, according to Romero…

Somehow, after MLB was warned in early July, those concerns about three supplements available at every GNC store did not reach the players’ association.

Should this have actually transpired as Gammons recounted in his very good article Tuesday, this is troubling.  How, if at all, did this factor into the arbitrator’s ruling?  That is, does the possibility exist that 6-OXO Extreme was flagged in early July and reported to MLB, yet MLB did not get around to disseminating the information to the MLBPA?  Let’s say, for example, that MLB had taken the information that the National Center for Drug Free Sport had given it.  My belief and understanding from involvement in grievances and arbitration cases, as well as reading about the subject, is that changes in either the implementation of a policy or its terms that may or may not at some future point result in disciplining an employee must be passed along to the union and, to ensure that both sides would unambiguously understand the policy and its changes, such adjustments should be passed along in writing and with ample time for employees and the union to read, review, and comply with the changes.  Did this occur?  Did MLB make it known to the MLBPA that 6-OXO Extreme in fact acted as a steroid and taking it would therefore result in a positive test result?

MLBPA issued a letter to its members on November 21 that raises questions about what the organization knew and when:

We have previously told you there is no reason to believe a supplement bought at a U.S. based retail store could cause you to test positive under our Drug Program. That is no longer true. We have recently learned of three substances which can be bought over the counter at stores in the United States that will cause you to test positive. These three supplements were purchased at a GNC and Vitamin Shoppe in the U.S. (Gammons)

How this appeared to the arbitrator is what I’d like to know, especially since the MLBPA statement linked above did not address the content of this letter.  Had it in fact just learned about new substances such as 6-OXO Extreme?  Even if it had, is the MLBPA hedging its bets against a possible lawsuit from Romero?  The latter is unlikely, not only because I’ve read nothing about this possibility but also unions are protected against such suits unless a member can prove that the union discriminated against or intentionally failed to properly represent the member.  The burden of proof in such cases is high, and it in effect means that unions cannot be sued for representing members badly–just for intentionally doing so.

I’m eager to get a hold of the arbitration decision for this case.

In the meantime, there is considerable blame to go around.  First, it is best to start with Romero, not just for his taking this “supplement” but primarily, it seems, for not having properly investigated the product beforehand and certainly not through the proper channels.  Before people prepare to pounce on the MLBPA, whose position and knowledge of the substance in question in this case are murky and which may be to blame for poor representation, consider a few things.  First, the union–any union–has the obligation to represent its members to the best of its abilities.  It may have felt that Romero had a case, and I’m still holding out the possibility, based on the letter that Gammons quoted, that the MLBPA was not informed in a timely manner about this substance.  Arbitrators can at times ignore or discount such crucial pieces of information in rendering decisions that, as a result, make little sense.  Then again, perhaps baseball did properly notify the MLBPA and the union discovered this at some later point, perhaps while the case was well under way, leaving it in a hamstrung position from its screw-up and left to cobble together a defense based on the issues of labeling and mistaken information.  Perhaps still, the MLBPA had not been informed of 6-OXO Extreme and the two other newly banned substances, but the arbitrator decided that Romero’s failure to adhere to the channels of information–to properly inform himself–did not adequately safeguard him from punishment regardless–that his chosen paths to inform himself of the product in question produced an ignorance that was no defense before the laws of Baseball’s Joint Program.

Having been in such situations, it would not surprise me in the slightest if Romero knew precious little about where to learn about 6-OXO Extreme even if, as Manfred stated, baseball passes along such information to players at the start of every season.  From my experiences there are a good many well-informed workers, but too many too often labor under specific terms and conditions that they not only do not know despite being given copies of contracts filled with detailed provisions, but often do not care to know.  They throw out or blithely cast aside pertinent memos, booklets, and the contracts themselves, leaving the job of discerning and interpreting key provisions to others.  Then when a problem arises, they run to the union to bail them out of situations that a modicum of forethought and information would have solved, leaving them and their union in an uncertain position that often involves weighing options such as whether or not to pursue a case, how far to do so based on whether or not they can win and, with smaller unions and especially their locals, at what financial cost.  So often, as my friend Geno (a former union steward) always said, “People don’t read their damn contracts or know the damn rules.”  That, too, may have happened with Romero.

The MLBPA has taken grief from Philadelphia-area columnist Rich Hofman, who claimed in his Tuesday column that the union is “the villain” in the Romero case.  Citing the same excerpt from the letter I included above, Hofman assessed it as follows:

if the reason Romero ultimately took the supplement, the reason he thought it was OK, was because he bought it over the counter and the union gave its universal blessing to every bottle of synthetically-engineered crap on every store shelf in the whole entire United States of America, well, it would seem to me that the union has some explaining to do. As in, how could it possibly take such an irresponsibly-liberal approach to this business?

This presumes a lot.  It could well be that the MLBPA or some personnel within it maintained a position that over-the-counter supplements would not cause a positive test, although it seems unlikely that the MLBPA as a whole would since it negotiated a very detailed testing program with many items jointly understood to be banned, and as I mentioned has a link on its website with the NSF-Approved Supplements List.  It could be that someone who issued the earlier information passed along bad information in a careless statement to Romero and others.  But to place the onus for this on the MLBPA and not Romero, to not know or consider what the MLBPA knew and when about 6-OXO Extreme, and to not have quoted from the arbitrator’s decision about these and other questions is to peddle misinformation and ignorance through anti-union fueled finger-pointing.

I also think there is something else to consider outside the parameters of this specific case.  It could well be that someone in the MLBPA screwed up.  It’s much likelier to me that Romero himelf screwed up more than anyone.  It’s not outside the realm of possibility that MLB did not pass along information about the flagged 6-OXO Extreme in a timely manner to the MLBPA.  However, whether or not any or all of the above is true, it could be that the Players’ Association took this case regardless of the possibility that it might lose (and it just might have known that all along) in order to show Romero and the rest of the MLBPA members that it is standing up for them.  Don’t consider this lightly, for with calls from even wealthy owners such as Houston’s Drayton McLane for a salary cap, the Players’ Association will have one heck of a fight on its hands after the expiration of the current collective-bargaining agreement in 2011.  It would not help to keep players in unison up to and during those contract negotiations if they felt that the union had not stood up for them, even if it faced difficult odds in winning Romero’s case.  Don’t think for a second that players, fairly or unfairly, wouldn’t level charges against the Players’ Association for not standing by them by citing Romero had the Association not taken the case.  Heck, regardless of what was known or not known by any parties in this and given the significant publicity this has already drawn, don’t think that shrill columnists such as Hofman wouldn’t have leaped at the opportunity to bash the union had it decided not to take the Romero case to arbitration, fearing it would lose.  To a good degree, the MLBPA (this goes for unions generally) is damned if it does and damned if it doesn’t.  If it had won, it would have been criticized by baseball and many critics for successfully representing someone who took a de facto steroid.  Yet when it lost, it was to blame for how it defended or didn’t defend Romero, and what it said and wrote without people considering what it knew and when, and whether or not it considered this a winnable case despite its public statements defending Romero–exactly what it should have done.

To me, it’s more difficult to say the MLBPA is at fault without knowing more details about the case than it is to say that Romero is.  After all, the MLBPA didn’t search out and buy de facto steroid supplements.  Romero did.  Well or poorly, the MLBPA just defended him.   That is what unions do, including defending members who are to some degree guilty which, even if what Romero claims to have happened is true, Romero is.

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Published in: on January 8, 2009 at 2:51 am  Comments (7)  

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  1. […] Jason at Heartland Pinstripes has this excellent post on the J.C. Romero suspension. It’s an excellent read into what transpired between Romero, the Phillies, MLB, and MLBPAA. It’s a bit long, but worth it if you have a few extra minutes. […]

  2. and it’s not just Romero. The Yanks signed Sergio Mitre—not a major signing, Mitre is coming off injury and was most likely minors bound—but Mitre’s story mirrors Romero’s. Mitre got the same 50 g penalty.

  3. Thanks to the guys at Generation Third for the pingback on this post. It was a little longer than I originally wanted, but I felt that there were various angles that needed to be examined.

    I saw that about Mitre, Mike, but I focused on Romero’s case in order to incorporate the media’s discussion of him. Romero’s drew considerable flak from the punditocracy, somewhat off-base in my opinion. Romero also had a bigger bully pulpit in the media than Mitre.

  4. your cursory examination of this topic has led me to think you have become a dilettante. ;-()

  5. This is a fairly comprehensive review of a fairly complicated case and it will be interesting to see how the facts eventually unfold. In the end though in today’s times where transparency and compliance are such critical importance in the business world (and baseball is big business) the fact that Romero did not call the right hotline is key. He must pay the price, and while steep, it hopefully sends a message to the others thinking of doing the same. Still MLBPA is not looking all that great on the facts either and that is just as sad.

    http://fridayniteyanks.wordpress.com

  6. Thanks for the thoughtful, well-reasoned post JasonHeartland. Something else left out of this whole discussion, English is not Romero’s first language. To anyone having to learn a different language, some more difficult than others, especially relating to one’s work and income, puts one at a decided disadvantage. Romero’s profession placed emphasis on his physical ability to throw a baseball with speed/precision and make snap judgements about fielding his position, etc., not read, comprehend and keep up with the latest list of banned substances and other contractual obligations as negotiated by the union which represents him and his teammates (union player reps aside). If it’s hard for lawyers to sort these things out what chance do most athletes (and non-“American-English” speaking athletes even less) have to make sense of all this, especially regarding over-the-counter supplements and its impact on their ability to ply their trade for income? Along the same lines what chance do we (the general public) have of getting Romero’s true thoughts, due to the language issue, on this whole mess, is it possible to ever know? One thing not emphasized, Romero tested negative after being told the supplement was not approved after he tested positive initially. It’s a shame that fairness is possibly being given short shrift at the expense of bigger issues such as labor contracts and owner’s inabilities to keep players’ wages down (and control their own spending habits regarding player contracts). And isn’t that the nature of arbitration, choosing one side over the other? I doubt we’re even close to the last word on this issue.

  7. Clearly I have become a dilettante, Mike. A Jack of all trades, master of none.

    Thanks, Tom. The MLBPA is not looking good on this, and just might have given bad advice. However, I think the onus is on Romero for this, and we only know so much about the procedures for disseminating information between the MLB, players, and MLBPA about banned substances. Without trying to exonerate the players’ union, it wouldn’t be a stretch or a precedent for MLB as a company to have dragged its feet on passing along the flagged 6-OXO to the MLBPA. There is a duty for them to notify the MLBPA–for any company to notify any union and its employees–of a change in policy in a timely manner. I’m not so sure they did this.

    Thanks for posting, Bud S.–or should I call you Mr. Selig? I;m not unsympathetic to the argument about players/people dealing with a second language. However, Romero is pretty fluent in English, sufficiently so to use colloquialisms in interviews. He might have gotten bad advice from the MLBPA regardless of his original language, but I’m not so sure that language was the deciding issue. Plus, teams to provide interpreters, and Spanish, while a different language, I’d argue is less a barrier than it was, say, 30-40 years ago. On the second issue of the follow-up test, it’s true he did test negative, but all that indicates for sure is that, once the supplements were out of his system, he was clean–not before. It also shows that he might be rather honest about all this including the chronology of events.

    And you’re right, Bud, arbitration is choosing one side over the other, although arbitrators have significant wiggle room to administer their own judgment, to determine the credibility of witnesses, to determine the order of events, and the severity of penalties. Often in arbitration cases, arbitrators determine that employees deserved some punishment, but not the level that employers applied, frequently locating the remedy somewhere between what employers and employees want. Alas, we might well have heard the last word on this, since arbitrators have the last word in an insular system of workplace jurisprudence. As a product of the Steelworkers’ Trilogy (1960), decisions in self-administered systems of workplace adjudication need not be appealed to higher powers such as the Supreme Court. Plus, Romero himself said he wouldn’t appeal.

    Come back anytime, Bud.


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