Instant Legal Analysis: Arbitrator reduces A-Rod's suspension
Eric Macramalla, TSN Legal Analyst
1/11/2014 8:21:44 PM
An independent arbitrator has finally ruled on Alex Rodriguez
's appeal, reducing his suspension from 211 games to 162 for his involvement in Major League Baseball's Biogenesis scandal. A-Rod is also disqualified from any post-season play. So at the tender age of 38, he will miss all of next season. As a result of missing the coming season, he's also out $25 million (which coincidentally is my hourly rate).
This brings the arbitration process to a close. This case, however, is far from over. Still some track to cover. Who was the arbitrator?
His name is Fredric Horowitz, he's 64 years old and specializes in labour and employment arbitration. After MLB fired arbitrator Shyam Das when he overturned Ryan Braun
's suspension, Horowitz was hired to replace him and handle these types of grievances. He's been a full time arbitrator since 1988. Who won the appeal?
This is a win for MLB. A big win.
While the suspension was reduced by 49 games, this should not be seen as a failure for baseball. A substantial part of the suspension was preserved (about 75per cent). So while we saw a reduction, MLB ultimately got its wish: A-Rod is gone for all of next season.
As well, based on past arbitration cases and MLB's Drug Policy, it could have been worse for MLB. Historically, arbitrators don't like to see punishments or sanctions that seem to be a dramatic departure from the existing rules and policies at play. So are you saying that A-Rod's suspension could have been reduced by a lot more?
Yes. The collectively bargained Drug Policy provides for a 50 game suspension for a first time offender like him, and as a result his 211 game suspension may have been found to have been not only excessive and heavy-handed, but also not in keeping with the Drug Policy. The Drug Policy calls for a specific punishment for a first time offender, and that punishment was ignored in favour of a far longer suspension.
If that argument got any traction, the arbitrator could have reduced the suspension by many more games. So why didn't the arbitrator reduce the suspension by more games?
He was convinced that a substantial suspension was warranted. Based upon what we know about this case, MLB argued that A-Rod had engaged in an extensive and continuous pattern of PED use since at least 2010. He also has a long standing relationship with Biogenesis founder Tony Bosch that dates back to 2009. MLB also alleged that A-Rod obstructed its investigation, tampered with witnesses and generally interfered with its attempt to get to the truth. MLB has also suggested that A-Rod may have also recruited players to Biogenesis. Ultimately, his pervasive and wide ranging pattern of wrongdoings was not only contrary to the Drug Policy, but also the MLB's Basic Agreement, which allows baseball to discipline a player for conduct detrimental to the game. So given these various factors, A-Rod's suspension was reasonable in the eyes of the arbitrator.
So all of these elements conspired to result in only a modest reduction in the suspension. Was this ruling predictable?
Yes. A reduction was in order but nothing earth shattering. So what's next for A-Rod?
He's says he's going to challenge the decision in Court. A-Rod filed his lawsuit against the league (and also personally against Commissioner Bud Selig) months ago in anticipation of being in a position to challenge the whole Biogenesis investigation and suspension.
The first thing he does is ask a judge to put the suspension aside until such time that the case is decided in a court of law (which could take years thereby allowing A-Rod to play out his contract). A-Rod is unlikely to be successful with this request since this type of relief is only awarded in very special circumstances; and this isn't one such case on its face. Horowitz is a seasoned and respected arbitrator, and a court will defer to him.
Right now, MLB is trying to have the case kicked out of Court, while A-Rod wants it moved to state court. It would be a surprise to see a judge kick the case out of court completely; still A-Rod faces challenges. Enough Jibber Jabber. Can A-Rod win in Court?
Probably not. Here's your bottom line: judges are very reluctant to overturn arbitrators unless their decisions are off the wall. The reasoning is this: arbitrators are specialists on the issues they rule on and judges are not in a better position to decide these cases. Also, judges want people to respect arbitration and take it seriously. If they didn't, the lines at the court house would be a lot longer.
Apart from being a partner at a law firm, I'm also an arbitrator. When I'm making my rulings, I know that unless I'm totally out in left field, my decision will stand if challenged in court.
So A-Rod has a real uphill battle ahead of him. The likelihood of success seems low. However, A-Rod may still pursue it and this could go on for years. Anything else I should know about?
One small thing: Federal law enforcement officials are investigating Biogenesis raising the possibility of criminal charges. If that happens, expect the feds to have A-Rod testify under oath. At that point, he would be advised that he needs to tell the truth, failing which he could face perjury charges. This is quite the mess.