A-Rod faces long legal odds in attempt to keep fighting
In a decision that largely cuts against Alex Rodriguez, arbitrator Frederic Horowitz has modestly reduced Major League Baseball's 211-game suspension to one that will force Rodriguez to miss the entire 2014 season and any postseason play. Barring a successful legal challenge, the suspension will cost him $25 million in salary, plus lost opportunities for bonuses and playoff money. The players' association, which assisted Rodriguez in his arbitration, has announced that it will not challenge Horowitz's decision.
Below is a breakdown of what the decision means for the major parties involved, as well as a look at what legal avenues Rodriguez has said he will pursue.
The verdict represents a clear, if not decisive, victory for MLB and its attorneys. While the suspension was reduced by a healthy 23 percent, it remains a longer ban than one that likely would have been imposed on Rodriguez had he "pleaded guilty" like Ryan Braun and 12 other players connected to Biogenesis. From that lens, the suspension serves as an important deterrent to future players who might contemplate a legal fight. The message is clear: drug test or not, if Baseball catches you working with a drug clinic, you are best to strike a deal and admit fault rather than go the A-Rod route.
MLB's decision to impose an the longest non-lifetime suspension in the sport's history also looks wise from the vantage point of its relations with the players' association, which can now claim a minor victory. The union can tell its membership that its work on the Rodriguez arbitration helped to reduce the penalty to a more acceptable level. If MLB had instead imposed a 162-game suspension and Horowitz approved it, the players' association would have been perceived as a loser.
Rodriguez's advisors expected a much more significant reduction in games. While virtually no one expected Horowitz to overrule the suspension, Rodriguez's lawyers thought they had made a compelling case for a reduction to at least 100 games.
Their core argument was two-fold. First, neither the basic agreement (the CBA) nor the Joint Drug Agreement supplied legal support for a suspension of that length. Keep in mind, Rodriguez's 211-game suspension equaled the remainder of the 2013 and all of the 2014 season, whereas MLB's agreements with the players' association link specific game amounts to specific infractions. In other words, it seemed that Baseball had applied a different metric for Rodriguez's suspension -- the remainder of a current season plus all of the following season -- than the one that had been collectively bargained.
Second, Rodriguez maintained that the evidence against him was unpersuasive and tainted. Rodriguez never failed a drug test and Baseball relied heavily on information provided by Biogenesis director Tony Bosch, who even MLB had portrayed in a lawsuit as a drug dealer. While these arguments likely persuaded Horowitz to reduce Rodriguez's suspension, they fell far short of achieving what could be described as a win for A-Rod's team.
Rodriguez's own reaction to Horowitz's decision is one of disappointment and disdain. In a sternly-worded statement, Rodriguez dismisses the arbitrator as having merely provided "one man's decision," emphasizes the absence of a "fair and impartial jury" and stresses that some pieces of evidence used in the arbitration hearing likely would not have been admissible in a court trial.
While all of these critiques are true, they are also part of the arbitration process that Rodriguez agreed to as a member of the MLBPA. In other words, highlighting the limitations of arbitration seems designed more for public consumption than for outlining a winnable legal strategy to challenge Horowitz and MLB.
Rodriguez has already sued baseball commissioner Bud Selig and MLB in a New York state court, arguing that the suspension and baseball's alleged leaks to the media have damaged his career. Attorneys in Rodriguez v. Selig are fighting over whether the lawsuit should be heard in federal court or state court. Rodriquez would have to turn to federal courts to challenge Horowitz's decision, which he said in his statement he plans to do. A likely first step would be to seek a preliminary injunction of the suspension. In doing so, Rodriguez would ask a federal judge to essentially "suspend the suspension" until there can be a full court hearing, likely later in 2014, on the merits of his lawsuit.
Unfortunately for Rodriguez, a judge would be unlikely to do that. Judges usually reject requests for preliminary injunctions, which are sometimes described as "extraordinary" remedies, because they tend to dramatically impact litigations and are typically based on incomplete records. Consider the impact of a preliminary injunction being granted for Rodriguez: He would be able to play in 2014 until a trial, which may not be scheduled for well into the this season or beyond.
Rodriguez's attorneys are also likely to struggle to prove the necessary elements for a preliminary injunction. A judge would balance four factors in reviewing whether to grant an injunction.
First, Rodriguez would have to show he has a substantial likelihood of success on the merits. The problem for Rodriguez is that federal courts are highly deferential to arbitration rulings and Horowitz is both experienced and respected. Rodriguez would have to supply compelling evidence that Horowitz exhibited what's known as a "manifest disregard of the law" in his decision-making. This standard usually requires a showing that the arbitrator made an egregious error in evaluating the evidence or otherwise ignored basic legal principles. It seems unlikely that Horowitz made such an error. Rodriguez may highlight how Selig avoided having to testify, but it's unclear why Selig "had" to testify to make the arbitration valid. Selig, according to published reports, has never testified in an arbitration related to performance-enhancing drugs.
In addition, the fact that the players' association did not formally challenge Selig's absence does not help Rodriguez's case. Rodriguez would also assert that MLB strategically leaked information to sympathetic media members as a way of undermining his chances in arbitration, but proving such a claim with actual evidence would be difficult.
Rodriguez might fare slightly better arguing the second factor for a preliminary injunction: if no injunction is granted, he would suffer irreparable injury. Rodriguez would likely insist that if the suspension is carried out, he would suffer permanent damage to his career and legacy. The problem with this is that "irreparable injuries" are generally considered those that can't be repaired by money. While Rodriguez might insist that no amount of money can repair his legacy -- and his Hall of Fame chances -- if he ultimately wins a trial later this year or in 2015, a court would probably be skeptical of such an argument. Judges usually find money damages to be able to repair most types of legal harms, including those to one's reputation.
Rodriguez would also face a challenge establishing the third factor: that a preliminary injunction would not harm MLB more than it helps him. He would emphasize the suspension is primarily about him, not MLB. For its part, the league would contend that an injunction of any player's suspension would jeopardize important dispute-resolution agreements between MLB and the players' association. An injunction might also encourage future suspended players to file lawsuits.
Lastly, Rodriguez would have to convince a judge that an injunction would advance the public's interest. He could insist that MLB's purported media leaks have unfairly prejudiced his legal rights and tainted perception of the evidence. He might also criticize his own union for not fighting as hard for him as perhaps it has for others players. Essentially, Rodriguez would claim that it is in the public's interest to have a court evaluate the process that led to his suspension. Baseball, however, would claim that Rodriguez, by virtue of his membership in the players' association, agreed to the dispute-resolution process that he now criticizes. If Rodriguez has a grievance with the players' association, MLB might add, perhaps he should sue the players' association for failing to satisfy its duty of fair representation.
Sometimes litigation is motivated less by a desire to win and more by a desire to exact revenge. Rodriguez famously stormed out of his arbitration because Selig would not testify. If Rodriguez truly finds it essential that Selig testify, he'll have to wage a legal fight. For a person of Rodriguez's wealth and determination, he may find it worthwhile to spend millions of dollars on legal fees to see the day where Selig swears to tell the whole truth and nothing but the truth.
As expected, Rodriguez has filed a lawsuit against MLB in federal court. More surprisingly, Rodriguez has also sued the players' association. Rodriguez claims the players' association breached its duty of fair representation to him by failing to protect him from the commissioner's office. The duty of fair representation obligates unions to represent its members fairly and impartially. By suing the players' association, which collectively bargained the arbitration process with baseball, Rodriguez hopes to show the process that led to his suspension was flawed. In his complaint, Rodriguez describes the players' association as passive observers while the commissioner's office purportedly leaked information to media and purchased evidence to implicate Rodriguez in the Biogenesis scandal. In Rodriguez's view, the players' association essentially sold him out to preserve good relations with the commissioner's office.
As in suing baseball, Rodriguez will face a difficult legal hurdle in suing the players' association. Courts generally review union-member conduct with great deference. So long as the players' association did not act arbitrarily, or act with discrimination or in bad faith toward Rodriguez, his duty of fair representation claim will likely fail. Rodriguez will need compelling evidence, including e-mails, memos and other records, to back up his contentions. If his only evidence is a firm belief that the players' association didn't try hard enough for him, that would clearly fail to constitute sufficient legal grounds. Also, expect both the players' association and baseball to stress that if Rodriguez can evade a penalty by suing over collectively-bargained terms, it would mean that other collectively-bargained terms may be vulnerable to player litigation.
Suing the players' association could backfire on Rodriguez. Keep in mind, the players' association may feel it is compelled to collaborate with baseball in order to defend itself adequately from Rodriguez. As a result, it may, with court approval, share sensitive and damaging information about Rodriguez to baseball. This is one of the reasons why it is rare for a player to sue or threaten to sue his union: The union may have dirt on that player. Also, if the Yankees later try to void Rodriguez's contract and he requests help from the players' association at that time, Rodriguez would be putting his union in the untenable position of being both for and against him. Given Rodriguez's predicament, however, he may feel suing the players' association is a worthwhile gamble. By suing, he goes on the offensive and hopes that it leads to the discovery of information that undermines the arbitration process.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.