Arbitrator’s Decision On Rodriguez Suspension Leaves Bad Taste

Baseball arbitrator Frederic Horowitz  reduced Alex Rodriguez’s suspension from 211 to 162 games in an opinion released to the parties today. Now that the arbitrator has ruled, Rodriguez’s suspension takes effect immediately.

The meaning of “immediately” is unclear, though, because we are in the midst of the offseason. Rodriguez’s attorneys told reporters that the third baseman plans to show up for spring training with the Yankees, even if he is barred from playing any regular-season games this year. The Yankees are likely to do what they can to stop that from happening.

At this point, we don’t know why the arbitrator reduced Rodriguez’s suspension to 162 games. His written opinion has not been made public. Rodriguez’s attorneys announced that they plan to ask a federal court on Monday to overturn the decision, despite the long odds (more on that below). If that happens, the opinion is likely to become public as an exhibit to Rodriguez’s complaint.

Until then, we are left to wonder what evidence Horowitz found credible or which provisions of the Collective Bargaining Agreement and the Joint Drug Policy he relied on in reducing the suspension from 211 games to 162.

On those points, let’s take a step back and remind ourselves how we got here.

MLB suspended Rodriguez on August 5 for violations of the CBA and the JDA between MLB and the Players’ Association. MLB charged Rodriguez with using two different banned substances over a period of years (testosterone and human growth hormone) 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.

In the weeks leading up to MLB’s suspension of Rodriguez, there were reports that Bud Selig was considering invoking his powers under CBA Article XI, Section (A)(1)(b) to suspend Rodriguez for life to preserve “the integrity of, or the maintenance of public confidence in, the game of baseball.” If Selig had done so, Rodriguez would not have had the right to appeal the suspension to the arbitrator, as the “integrity of the game” provision gives the commissioner final say on the matter.

I raised concerns about Selig using this provision in a post entitled “Is Selig Preparing To Use The Nuclear Option?” Many others did, too. Ultimately, the threat of a lifetime ban was seen as nothing more than a heavy-handed negotiating tactic to force Rodriguez to accept a lesser punishment if he agreed to forgo an appeal.

Selig was then said to be considering suspending Rodriguez for life under the “best interests of baseball” clause of the CBA. Under that provision, found in Article XII, Section B, “[p]layers may be disciplined for just cause for conduct that is materially detrimental or materially prejudicial to the best interests of Baseball including, but not limited to, engaging in conduct in violation of federal, state or local law.”

Reports suggested that Selig leaned toward using the “best interests of baseball” clause because it would give the league flexibility to impose a very long suspension, and one that would keep Rodriguez off the field while he appealed. Section C of Article XII requires “prompt compliance” with discipline imposed under Section B, meaning that the player must serve the suspension even if he files a grievance.

In the end, Selig invoked both the JDA and the CBA, but permitted Rodriguez to play while his appeal was pending — essentially, the remaining 49 games in the 2013 season.

Still, questions remained how Selig arrived at a 211-game suspension.

Section 7(A) of the JDA states:

A player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the possession or use of a Performance Enhancing Substance, will be subject to the discipline set forth below. (emphasis mine) 1. First violation: 50-game suspension; 2. Second violation: 100-game suspension; 3. Third violation: Permanent suspension from Major League and Minor League Baseball.

Michael Weiner, who was at the time the MLBPA executive director (and has since passed away), suggested last July that suspensions for “non-analytical positives” — i.e., suspensions based on evidence other than a positive drug test — were not limited to the 50-100-lifetime regime, despite the plain language of the agreement.

Some have argued that the phrase “or otherwise violates the Program through the possession or use of a” performance enhancing substance is ambiguous because the terms “use” and “possession” aren’t defined. Others have argued that evidence that a player purchased PEDs merits stronger punishment than does a positive test, because a purchase shows the player intended to use a banned substance. Under the JDA, a positive test leads to an automatic 50-game suspension for a first time violation, even if the player can prove the PED was in his system accidentally.

Section 7.G. of the JDA may also have come into play. That section, entitled “Other Violations” states in subsection (2):

A Player may be subject to disciplinary action for just cause by the Commissioner for any Player violation of Section 2 above not referenced in Section 7.A. through Section 7.F. above.

Section 2 is the provision that outlines all of the Prohibited Substances (Drugs of Abuse, Performance Enhancing Substances, and Stimulants) and details what players are permitted to do and not do with these substances. The first sentence of Section 2 reads:

All Players shall be prohibited from using, possessing, selling, facilitating the sale of, distributing and/or facilitating the distribution of any Drug of Abuse, Performance Enhancing Substance and/or Stimulant (collectively referred to as “Prohibited Substances).

There’s nothing in either Section 2 or Section 7 that says anything about MLB investigations into a player’s use, possession, sale or distribution of PEDs. Yes, Section 7.G.2. gives the Commissioner the power to discipline a player for “just cause” but only when a player otherwise violates Section 2. That’s a much more narrow “just cause” provision than the one in the CBA, which gives the Commissioner the power to suspend a player whose conduct is materially detrimental to baseball.

As a result, we know Selig relied on both the JDA and the CBA, but we don’t know how he reached 211 games. Was it 50 games for using testosterone, 50 games for using HGH, plus 111 games for prejudicing “the best interests of baseball”? Was it 50 games for a first time violation for “use or possession” plus 161 games for prejudicing “the best interests of baseball”? Or something else?

The hearing on Rodriguez’s appeal got under way on September 30 at MLB’s offices in New York. Even though Rodriguez was the complainant — as he was challenging the commissioner’s suspension — MLB had the burden to prove that Rodriguez used substances banned by the JDA, that Rodriguez 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.

The appeal hearing before arbitrator Horowitz re-commenced on November 18 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 then argued to the arbitrator that Selig should be ordered to appear, and forced to testify to explain his basis for the 211-game suspension.

The arbitrator denied Rodriguez’s request, which led A-Rod to storm out of the hearing, and take to the airwaves to attack the appeal process. Ultimately, Rodriguez’s attorneys returned to the hearing without their client, completed their presentation of evidence, and participated in post-hearing briefing.

None of the questions we had in August as to how Selig arrived at a 211-game suspension have been answered. And there is nothing we’ve learned since then that explains how the arbitrator concluded that a 162-game suspension was justified under the express terms of the CBA and JDA.

Indeed, the ambiguity of how the JDA applies to a non-analytical positive coupled with the “best interests of baseball” clause in the CBA leave players at the mercy of the commissioner’s office — the exact opposite of what the 50 game-100 game-lifetime ban punishment scheme had intended to accomplish.

If a player fights a suspension based on a positive test, is he acting against the best interests of baseball? If a player seeks evidence to counter a charge of a non-analytical positive, is he impeding MLB’s investigation? These are uncomfortable questions players and the MLBPA are now forced to confront.

So what’s next for Rodriguez? His attorneys plan to challenge the arbitrator’s decision in federal court as early as Monday. Rodriguez already has a lawsuit against MLB pending in federal court in Manhattan and any further filing by him is likely to consolidated with that case.

But he faces a steep uphill battle. Horowitz’s decision is final and binding under the terms of the CBA and JDA. 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 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.

This may be the end of the road for Rodriguez — at least as it relates to this this suspension. But MLB’s conduct, Selig’s reasoning, and the arbitrator’s decision will reverberate for the players and the MLPBA for years to come.