Posted January 09, 2014

Arbitrator’s decision on Alex Rodriguez imminent, resolution less so

Alex Rodriguez
Alex Rodriguez, Yankees

Alex Rodriguez is planning to continue the fight over his 211-game suspension if he doesn’t get a ruling he likes. (Patrick Semansky/AP)

With Wednesday’s Hall of Fame announcement out of the way, the stage is clear for the next big headline of baseball’s offseason: the ruling by arbitrator Fredric Horowitz on Alex Rodriguez 211-game suspension. The ban was handed down in early August as punishment for Rodriguez’s alleged use of performance-enhancing drug use and obstruction of Major League Baseball’s investigation into the Biogenesis clinic that reportedly provided such drugs to Rodriguez and numerous other major and minor league players.

However, Horowitz’s decision may not be the final word on the subject. The New York Daily News reported on Wednesday that, as has long been suspected, Rodriguez and his legal team are prepared to appeal an unfavorable decision in federal court and to request an injunction that would allow Rodriguez to continue to play during the course of that appeal. “The papers are all ready,” said one of the News‘ anonymous sources.

Rodriguez’s hearing concluded on Nov. 21, after which both sides had until Dec. 11 to file written briefs and an additional 10 days to file replies to the opposing briefs. Horowitz’s deadline is reportedly 25 days from his receipt of both replies, putting it at Jan. 15 at the latest.

Per the Daily News report, Rodriguez is expected to accept any reduction of his suspension that brings its duration within the scope of those handed out to the other major league players connected with Biogenesis — that is, 65 games (the length of Ryan Braun’s suspension) or less. Such a reduction would undermine any argument Rodriguez and his lawyers might make in federal court that Rodriguez was punished excessively or otherwise unfairly targeted by the commissioner’s office.

Such a reduction would also reduce Rodriguez’s financial incentive to fight Major League Baseball in federal court using some of the most expensive attorneys in the country. If suspended for the entire 211 games starting on Opening Day of the 2014 season, Rodriguez will lose roughly $31.35 million in salary, not counting the reduced likelihood of his reaching the milestone career home run totals of 660, 714, 755,  762 and 763, each of which would trigger a $6 million bonus in Rodriguez’s contract. If he’s suspended for just 65 games of the 2014 season, however, he would lose only $10 million in salary and would start his season in mid-June just six home runs shy of the first of those milestones (Rodriguez currently has 654 career home runs).

There would seem to be very little chance that Rodriguez’s suspension will be overturned in its entirety, and it’s very likely that any reduction will result in Horowitz’s dismissal by MLB, something of which Horowitz is surely aware. Shyam Das, the arbitrator who overturned Ryan Braun’s initial 50-game suspension in February 2012, was fired that May. Most famously, Peter Seitz, the arbitrator who redefined the reserve clause in the Andy Messersmith and Dave McNally case in 1975 was handed a letter informing him he was fired mere moments after delivering his decision to Baseball’s lawyer, John Gaherin. (According to John Heylar’s Lords of the Realm, upon signing Seitz’s decision, Gaherin handed Seitz the letter saying, “That’s that, and this is for you”).

That’s not to question Horowitz’s integrity, but the precedent of firing arbitrators who rule against MLB is a clear flaw in the process. In fact, it would seem to be an important aspect of Rodriguez’s potential appeal and could be essential to helping him and his legal team overcome the courts’ typical reluctance to hear appeals of grievances that have been decided through collectively bargained, binding arbitration. If Baseball dismisses Horowitz, it will be supporting Rodriguez’s appeal argument, and therefore it can’t fire him. Thus Horowitz might actually have some job security he may not otherwise have had.

For now, we wait, but don’t bother mending the garments rended over yesterday’s Hall of Fame vote. They’ll just be torn again in a few days.

32 comments
Munson15
Munson15

Your misunderstanding the whole "fire the arbitrator" angle.  Arbitrators are mutually agreed to by the parties - both sides have to believe that the arbitrator is capable, fair, honest, etc.  If one side or the other believes that an arbitrator is lacking - for any reason - they dont agree to them and someone mutually agreeable is appointed.  When an arbitrator makes what you consider a "bad decision" you usually decide never to use them again.   If MLB stopped using ("fired" in your parlance) every arbitrator who ruled against them, they would quickly run out of arbitrators who could be used.  If the players Association did the same ... there could be no arbitration because there would be no mutually agreeable arbitrators.  Article XI(A) of the MLB/MLBPA agreement provides that the PA and MLB pick an arbitrator who serves indefinitely, in all cases, until he/she is terminated by one side or the other or until the parties pick another arbitrator.


If you believe that the arbitrator would be swayed in his decision by the possibility that MLB might stop using him, then you also have to believe that he would be swayed by the possibility that the PA would stop using him.  An arbitrator who is perceived to be swayed by this sort of thing is an arbitrator who doesn't get appointed to do too many arbitrations  - by MLB or by anyone else.

SteveBienefeld
SteveBienefeld

To make something clear, arbitrators are agreed to by both MLB AND the players union, and serve at the pleasure of both.  I believe that Rodriguez will be suspended for most or all of next season.  His legal team will then file in Federal court asking for an injunction against the suspension, which will be quickly denied.  After all of the venom from Rodriguez's side directed at the Yankees and MLB, it's hard to imagine that he'll ever wear the pinstripes again, or any other MLB uniform for that matter.

niftynevins
niftynevins

This man should be re-named A- Hole! A-Rod has been a cancer to this game from the beginning. He is not bigger than the game and he should be banned for life! A true shitplayer that collapses at crunch time and is a ME, ME, ME player. Screw the team and hooray for me. I hope he is never elected into the HOF! It would be a disgrace to baseball! Get rid of this cancer! 

Jonjoe1959
Jonjoe1959

It's clear to me that Cliff Corcoran is "Bias" and on the side of Bud Selig & The Yankees by his Backwords Thinking. Here's why. First, Bud Selig & The Yankees have yet to Prove anything. That's right, what Evidences has been put forward to Prove Rodriguez's PED use, Purchase of PEDs, and Interfering with MLB investigation.? Absolutely Nothing. Second, this is not about "The Money" for Rodriguez, it is however for the Yankees. Rodrigueze has already made over $190mil. from the Yankees alone to date. What ever he has spent on this matter, he will "Recoup" in his Law Suit, if, and I do mean if, Horowitz upholds the 211Game suspension or any number of game suspension for that matter. Finally, contrary to Cliff Corcoran belief, Horowitz "Integrity" does in fact, comes into play. What self respecting "Arbitrator" wants a reputation of not "Practicing" or following "Law". The truth of the matter is that, Bud Selig, MLB & The Yankees have "Brought" the Brooklyn Bridge from Anyhony Bosch for more than $5 Million-Plus. **Oh, and so have Cliff Corcoran.!

parkbrav
parkbrav

"There would seem to be very little chance that Rodriguez’s suspension will be overturned in its entirety,"

If the arbitrator accepts the full 211 game suspension, then A-Rod would challenge the whole arbitration in federal court, including MLB's acquisition of the Biogenesis evidence. It is unclear to me what would result at that point.

parkbrav
parkbrav

Is this holding up the 2014 Hot Stove?

William27
William27

can't we send a-rod to north korea ???

JerryBelle
JerryBelle

Mr Corcoran - Doesn't an arbitrator serve at the pleasure of BOTH parties?  Isn't an arbitrator chosen from a list of arbitrators until a consensus is arrived at by BOTH parties following the termination?  Independent arbitrators serve at the pleasure of both the players' union and MLB's central office, and either party can terminate the relationship at any time. Both parties must agree on the hiring of a new arbitrator. 


Jonjoe1959
Jonjoe1959

SteveB.--"Venom from Rodriguez"? **You speak like a "Cult Member", Please don't drink the Kool-Aid.

Jonjoe1959
Jonjoe1959

Nifty. You talk like a FooL. Your anger is misdirected. Last I checked, your Yankees thinks differently because they've Paid Rodriguez $20mil.-plus for the last 10-seasons. Now who's the Dumb-A$$,--You or The Yankees.?

Munson15
Munson15

@Jonjoe1959 Rodriguez is going to lose in arbitration.  Then he's going to lose in Federal court. Then you can talk about the vast MLB/Federal Govt conspiracy to keep a good man down - probably because he's latino, or fighting for the common man, or because we're all trying to save the Steingrabbers their millions, or some other silliness.


As a Yankee fan, he annoys me to no end.  I dont hate him, he's just annoying.  However, right now my choices are Arod or Jason Nix at third base.  I prefer winning to losing, so I'll gladly take him back for that reason.  The fact that he's not worth 30 million or whatever they are paying him ... not my money, not my problem.

parkbrav
parkbrav

@Jonjoe1959"on the side of Bud Selig & The Yankees by his Backwords Thinking"

I'm assuming you meant "backwards" thinking? I stopped reading your post at that point, for some reason

SteveBienefeld
SteveBienefeld

@Jonjoe1959Had no idea you or any other lay people were sitting in on the arbitration hearing.  You must have been, to know so conclusively that MLB proved "nothing".  By the way, the arbitration hearing did not involve the Yankees, other than Randy Levine being called by Rodriguez's team to testify, but I would have thought you'd have known that if you were there. 

Jonjoe1959
Jonjoe1959

parkB.--Little Chance? Please, what has Bud Selig, MLB & The Yankees "Proven"?** Absolutely Nothing.!!

Jonjoe1959
Jonjoe1959

JerryB.- What? Your point is moot. Has it been suggested that a Firing & Hiring an Arbitrator is in order.?

Jonjoe1959
Jonjoe1959

SteveB.--So you really believe that the Yankees has nothing to do with this case? Funny how you give The Yankees the benefit of doubt.

parkbrav
parkbrav

@Jonjoe1959 JonJoe, that's actually what I'm saying if you read my post carefully. I'm saying, it appears to be A-Rod's desire to fight whatever suspension he might get in federal court. It's unclear to me what result that strategy might yield. I think it's possible, although not likely, A-Rod may succeed in federal court by challenging the so-called evidence MLB has amassed against him.

Jonjoe1959
Jonjoe1959

JerryB.-- Please send me on a trip. Pretty Please.!!

JerryBelle
JerryBelle

@Jonjoe1959 - You have trouble reading and comprehending from your replies to everyone on this forum.  It's fine to have a crush on A-Rod and be so enamored of him that you can't see straight, but Corcoran's article deals with arbitrators that were fired after decisions.  They aren't, in effect fired, but terminated as per arbitration rules that apply to both sides.  Just because you don't understand, doesn't mean you should attack someone with a question....smh.

sbp
sbp

@parkbrav@sbpWell, as you indicated, that's only a hypothetical if there was no arbitration. In fact, the evidence will NEVER be heard or considered by a judge or jury. The court CAN'T make a decision based the admission of evidence, and certainly can't apply the FRE to an arbitration. Even a successful appeal would only result in it going back to arbitration.

parkbrav
parkbrav

@sbp Thank you, very helpful

But just to reiterate. If the judge bars the evidence under some provision under the Federal Rules of Evidence, then it would never reach the jury (the judge can't even consider it during trial) and A-Rod might get off. I can't say for sure, but this seems like the Hail-Mary that A-Rod and his attorneys may be playing for.

sbp
sbp

@parkbrav@sbp@Jonjoe1959 PS, the other thing is most laymen don't really understand what is evidence or proof. First, "proof" is not an objective thing. Whatever amount of evidence is enough to convince the jury IS proof - in that particular case. 


Also, years of CSI on TV has resulted in most people thinking if you don't have a DNA match, there is no evidence. But testimony IS evidence. In the days before forensics, that's pretty much all there was. Bosch's testimony IS evidence. The arbitrator can choose to believe him, no believe him, or partially believe him. But even if that's ALL MLB had, it's STILL evidence. And if it convinces the arbitrator, the MLB proved it's case.

sbp
sbp

@parkbrav@sbp@Jonjoe1959MLB isn't the government, and it's not a criminal case, so you don't have issues like "search warrants." A jury might here how the evidence was obtained in order to discredit it, but it would be up to them to weigh the credibility of the evidence in light of that.  


In an arbitration, there literally ARE no rules of evidence. Hearsay - no problem. If the arbitrator chooses to hear it, there's nothing you can do about it. If you have crucial evidence and the arbitrator is tired and wants to wrap up the case and have dinner, too bad.


In my opinion, A-Rod's arbitrators know they have almost no chance on appeal, but they're telling A-Rod otherwise because it's what he wants to hear and they're making a fortune on him.

parkbrav
parkbrav

@sbp@parkbrav@Jonjoe1959Good points. Certainly, however, if there is a "rare" exception, this could be it, given the potency of A-Rod's position and claims. 

In your opinion, if a federal court was hearing this claim on its own, free of arbitration, would MLB's procurement of the Biogenesis material withstand the rules of evidence? I don't know the answer to this.

sbp
sbp

@parkbrav@Jonjoe1959 I am a lawyer and most of my practice involved arbitration. A court will essentially NEVER address the substance of an arbitrated claim on appeal. The court does not CARE if an arbitrator makes mistakes of law or facts, or comes to the wrong conclusions. It has been held countless times that the parties that choose to have an arbitrator decide a claim have to live with that decision. 

In the very rare instances a decision is tossed, it almost always involves outright fraud (bribery) or gross impropriety. An arbitrator sleeping with an attorney representing one side, for example. 

I've had arbitrators flat out ignore a contract because "that's not the way this business works," and on appeal the court followed precedent and said "tough." (We only appealed because the client insisted.

See
Moncharsh v. Heily & Blase, 3 Cal. 4th 1 (1992).), which is pretty typical.


In Moncharsh, the California Supreme Court observed the general rule that an arbitrator's decision cannot be reviewed for errors of fact or law. The risk of mistake is acceptable, said the court, because "by voluntarily submitting to arbitration, the parties have agreed to bear that risk in return for a quick, inexpensive, and conclusive resolution to their dispute."

Jonjoe is clueless.

MatthewEugeneHaag
MatthewEugeneHaag

@Jonjoe1959 As has been stated earlier it DOES NOT MATTER ONE IOTA what convinces us.  It matters what convinces the arbitrator.  Beyond that as the Lawyer said earlier "Testimony IS evidence".  All I need is someone to SAY that they sold drugs to ARod and it can come before a court.  The Jury (Or Arbitrator in this case) decides.  Even if they decide badly its still LEGAL!  

Jonjoe1959
Jonjoe1959

SteveB.,--Oh, is that your argument? If so, then the "Opposite" should apply as well.?

Now tell us SteveB. ** what Piece(s) of the Biogenesis evidence, "Convinced" you of Rodriguez PED use.??

SteveBienefeld
SteveBienefeld

@Jonjoe1959You're dying to see the Biogenesis evidence, but as no one has shown it to you there is none?  Since when does the fact that evidence is not shown to YOU mean that it  doesn't exist?  If no evidence existed, I dare say the arbiter (who is the one that DOES hear/see the evidence) would have make his ruling in a matter of hours or days.

Jonjoe1959
Jonjoe1959

JerryB. My comprehension is just fine, however, yours comes into question. Let me help you out. First, I'm not a Rodriguez or Yankees fan. I didn't care at first about the case until I learned, after the 211game suspension was handed down, that the case was/is an Non-Analytical PED finding. Naturally, I said "What the hell is a Non-Analytical Finding"? From that, I've been dying to see this Biogenies Evidence. To my surprise there is none, at lease none for us, the public to see, and "Why" is that? Very Strange to me, in that the Media "Tell & Sale" everything. With that being said, everyone, to include you, believe that Rodriguez is some-kind-of Steriod Monster, baseed on what "Evidence/Proof", in which has never been put forward to the public to "Judge". Now here you are, and Corcoran arguing the process/fairness of the Hiring & Firing of an Arbitrator. Again I say what does that have to do with Anything.? ** Just like MLB case against Rodriguez, Absolutely Nothing.!!