A-Rod Storms Out Of Arbitration, But Relief In Court Unlikely by Wendy Thurm November 20, 2013 Alex Rodriguez stormed out of the arbitration hearing today on his appeal of Major League Baseball’s 211-game suspension after the arbitrator, Frederic Horowitz, denied Rodriguez’s request to call Commissioner Bud Selig as a witnesses. Rodriguez’s outburst is just the latest twist in the on-going drama between him and MLB. And it suggests that Rodriguez and his attorneys believe that the arbitrator will uphold the suspension, at least for some number of games. But Rodriguez is unlikely to get the help he wants from a court — to either stop the arbitration or overturn Horowitz’s final ruling. Let’s review how we got here: MLB suspended Rodriguez on August 5 for violations of the the Collective Bargaining Agreement and Joint Drug Agreement between MLB and the Players’ Association (or MLBPA). MLB charged Rodriguez with using banned substances over a period of years and with attempting to obstruct MLB’s investigation. MLB suspended Rodriguez for the remainder of the 2013 season and all of the 2014 season, which amounted to 211 games. Rodriguez immediately appealed his suspension to baseball’s arbitrator. That gave Rodriguez the right to continue playing baseball until the arbitrator issued his final decision. The hearing on Rodriguez’s appeal got under way on September 30 at MLB’s offices in New York. Even though Rodriguez is, essentially, the complainant — as he is challenging the commissioner’s suspension — MLB has the burden to prove that Rodriguez used substances banned by the JDA and impeded the investigation, and that the 211-game suspension was justified. Over the course of several weeks, MLB put on the testimony of Anthony Bosch, the owner of the now-shuttered Biogenesis Clinic; Dan Mullins, MLB’s lead investigator, and Rob Manfred, MLB’s Chief Operating Officer. Rodriguez’s lawyers had the opportunity to cross-examine these witnesses and did so. There were charges and counter-charges of secret meetings, witness tampering, purchasing stolen documents and more. The appeal hearing was adjourned in mid-October, and set to resume on November 18. In early November, the New York Times detailed the aggressive tactics used by both sides during MLB’s investigation and Rodriguez’s appeal in this story. A few days after the Times story, Rodriguez sued MLB in New York state court for interfering with his contract with the Yankees and with other business relationships. Rodriguez accused MLB of doing everything in its power (and some things beyond its power) to paint him as the poster boy for the steroid era, to push him out of baseball and ruin his reputation. The complaint — which you can read here — previewed Rodriguez’s attack on MLB’s tactics and the appeal process, and tried to lay the groundwork for Rodriguez to overturn the arbitrator’s final ruling. But Rodriguez didn’t ask the state court to stop the appeal hearing. MLB removed Rodriguez’s complaint to federal court on the theory that Rodriguez’s allegations and his claims are governed by the CBA and JDA, and thus pre-empted by federal labor law. MLB then filed a motion to dismiss Rodriguez’s complaint on the same grounds (copy here). MLB also argued that Rodriguez had failed to “exhaust his remedies” by filing a lawsuit before the end of the appeal hearing. Rodriguez, for his part, filed a motion to remand the case back to state court (copy here). The federal judge presiding over the case — Judge Lorna A. Schofield of the United States District Court for the Southern District of New York — has not yet ruled on these motions. Which brings us to today’s developments. The appeal hearing before arbitrator Horowitz re-commenced on Monday for Rodriguez to put on his case. Yankees president Randy Levine was called as a witness, and gave 30 minutes or so of testimony. Rodriguez and his lawyers also argued to the arbitrator that Selig should be ordered to appear, and forced to testify on his basis for the 211-game suspension. This morning, the arbitrator ruled that Selig need not appear and testify. That decision set A-Rod off. Ken Davidoff of the New York Post was covering the hearing (by standing outside MLB’s offices, as the hearing is closed to the public) and reported: Upon learning of Horowitz’s ruling about Selig’s testimony, an angry Rodriguez slammed his hand on a table, according to one source familiar with the proceedings, and shouted at MLB COO Rob Manfred. One source contended Rodriguez told Manfred, “You’re full of s— and you know it,” while a second source said Rodriguez proclaimed, “This [process] is f—ing bulls—.” Rodriguez then departed with attorney Jim McCarroll. “I am disgusted with this abusive process, designed to ensure that the player fails,” Rodriguez said in a statement. “I have sat through 10 days of testimony by felons and liars, sitting quietly through every minute, trying to respect the league and the process. “This morning, after Bud Selig refused to come in and testify about his rationale for the unprecedented and totally baseless punishment he hit me with, the arbitrator selected by MLB and the Players Association refused to order Selig to come in and face me. “The absurdity and injustice just became too much. I walked out and will not participate any further in this farce.” After Rodriguez stormed out, several of his attorneys stayed behind to continue arguments on Horowitz’s ruling on Selig’s testimony. Then the hearing adjourned for the day. MLB issued this statement: For more than 40 years, Major League Baseball and the Players Association have had a contractual grievance process to address disputes between the two parties. This negotiated process has served players and clubs well. Despite Mr. Rodriguez being upset with one of the arbitration panel’s rulings today, Major League Baseball remains committed to this process and to a fair resolution of the pending dispute. The Players’ Association argued strongly on Rodriguez’s behalf that Selig should be forced to testify, but said that the appeal hearing must be completed despite Selig’s absence. Here is MLBPA’s full statement: The MLBPA believes that every player has the right under our arbitration process to directly confront his accuser. We argued strenuously to the Arbitrator in Alex’s case that the Commissioner should be required to appear and testify. While we respectfully disagree with the Arbitrator’s ruling, we will abide by it as we continue to vigorously challenge Alex’s suspension within the context of this hearing. Later in the afternoon, Rodriguez appeared on Mike Francesca’s radio show on WFAN in New York, alongside one of his attorneys. Rodriguez told Francesca that he never used PEDs, that he never took any steps to obstruct MLB’s investigation and that the whole thing was a lie. A-Rod also accused Bud Selig of working to put A-Rod “on his mantle” before he retires. Rodriguez’s attorney focused on MLB’s witnesses, and argued that the league had failed to meet its burden of proof. “The arbitrator could have and should have ruled after MLB rested its case,” the attorney said. The full audio of the interview will be available on WFAN’s website later today by clicking here. Rodriguez’s attorney is right. If his team refuses to complete their presentation of evidence, arbitrator Horowitz must still issue a decision on the appeal. The questions was and remains whether MLB met its burden of proof that Rodriguez used PEDs and/or obstructed the investigation, and whether MLB’s punishment was justified by the evidence and the language of the CBA and JDA. Rodriguez cross-examined all of MLB’s witnesses; it’s for the arbitrator to determine the credibility of the testimony and how the credible facts bear on the CBA and JDA. What is likely to happen next? True answer: who knows. My educated guess: Rodriguez’s attorneys will return to the appeal hearing, whether he accompanies them or not. It would be very difficult for A-Rod to get a federal court to stop the appeal hearing now, before the arbitrator issues his final ruling. The arguments made by MLB in their motion to dismiss are on point: federal law requires parties governed by collective bargaining agreements to exhaust the remedies provided for under those agreements before asking a court to intervene. Once the arbitrator rules, Rodriguez will undoubtedly attack the decision in court, unless Horowitz rules in his favor entirely. Federal court is the right forum, and Judge Schofield is likely to decide the matter. Again, Rodriguez will face a very tough burden to overturn the arbitrator’s final decision. As I explained in this post in June: A decision by the arbitration panel either affirming or overturning a suspension is final and binding on MLB and the player. Collective bargaining agreements are governed by the federal law known as the Labor Management Relations Act. Under that statute, judicial review of an arbitrator’s decision under a collective bargaining agreement is very limited. Courts are not authorized to review an arbitrator’s decision on the merits, even if one of the parties argues that the arbitrator made factual errors or misinterpreted the CBA. A court may intervene only when the arbitrator strays so far from his authority that he “dispenses his own brand of justice,” as the Supreme Court wrote in a recent opinion. In other words, Rodriguez will have to show that Horowitz was so in cahoots with MLB that it led to a fraudulent or biased proceeding. Perhaps Horowitz’s decision not to force Selig to testify will be enough to meet that standard. Perhaps, but not likely. Today was a day of high drama in the Alex Rodriguez Story. But the evidence and legal arguments in support of or against MLB’s 211-game suspension haven’t really changed.