On Alex Rodriguez’s Current Legal Affairs

By: Michael Engle

As of this writing, New York Yankees third baseman Alex Rodriguez has been suspended for the entire 2014 Major League Baseball (hereinafter “MLB”) season,[1] due to his use of illegal performance-enhancing drugs (as supplied to him by Biogenesis founder Anthony Bosch)[2] and his subsequent interference with MLB’s related investigation.[3]  As stipulated in his suspension, Mr. Rodriguez shall be suspended for 162 games–the entirety of a MLB regular season–and forfeit his twenty-five million dollar salary,[4] to which he would otherwise be entitled for 2014.[5]  Furthermore, in the event that his team should make the playoffs, Mr. Rodriguez shall be deemed ineligible for the entire 2014 roster.[6]  This ensures that he will not derive any direct economic benefit from the 2014 MLB season.  (As per the terms of his current contract, Mr. Rodriguez was paid three million dollars on Jan. 15, 2014.[7]  This money is the final subdivision of his ten million-dollar signing bonus, as initially agreed upon in 2007, and therefore not an economic benefit from the 2014 MLB season.)[8]

The 162-game suspension, as decreed by designated neutral arbitrator Fredric Horowitz,[9] represents the final decision on an administrative level.  Originally, on August 5, 2013, Mr. Rodriguez was suspended for 211 games (the entire 2014 season plus the remainder of the 2013 season from that date), plus all playoff games, by the Commissioner of MLB, Allan H. “Bud” Selig.[10]  In addition to suspending Mr. Rodriguez, Commissioner Selig suspended Milwaukee Brewers outfielder Ryan Braun for sixty-five games plus all playoff games, as well as twelve additional players for fifty regular season games.[11]  Mr. Braun and “the twelve” accepted their suspensions immediately and waived their MLB Players’ Association (hereinafter “MLBPA”) drug agreement-afforded rights to appeal.[12]  Mr. Rodriguez, on the other hand, exercised his right to appeal in a timely fashion; accordingly, he was allowed to play until his appeal was finalized, effectively reclaiming the remainder of the 2013 season for himself.[13]  (The Yankees failed to qualify for the playoffs in 2013.)

Shortly after Mr. Horowitz’s decision, Mr. Rodriguez, along with his attorney Joseph Tacorpina, filed complaints against MLB and the MLBPA in federal court.[14]  Mr. Rodriguez complains that the arbitration process was fundamentally unfair, and he also accuses the MLBPA of inadequate representation.[15]

What is the likelihood that Mr. Rodriguez will prevail in compelling the courts to vacate Mr. Horowitz’s decision as arbitrator?

In this writer’s opinion, as well as that of leading sports law expert Michael McCann, not very likely.[16]  In his attempt to overturn his suspension or to win an injunction, Mr. Rodriguez is most likely to claim that Mr. Horowitz was inherently biased in favor of MLB, i.e.: to the detriment of Mr. Rodriguez and the MLBPA, and that the admission of Biogenesis documents and Mr. Bosch’s testimony constituted reckless disregard for the law.[17]

With respect to the latter point, courts are loathe to overturn arbitrators’ decisions, especially when the arbitrator’s presence was pursuant to a collective bargaining agreement.[18]  In a recent unanimous SCOTUS decision (Kagan, J. for the majority, Alito & Thomas, JJ., concurring),[19]

A party seeking relief under § 10(a)(4) [of the Federal Arbitration Act] bears a heavy burden. “It is not enough … to show that the [arbitrator] committed an error—or even a serious error.”   Because the parties “bargained for the arbitrator’s construction of their agreement,” an arbitral decision “even arguably construing or applying the contract” must stand, regardless of a court’s view of its (de)merits.  Thus, the sole question on judicial review is whether the arbitrator interpreted the parties’ contract, not whether he construed it correctly. (internal citations omitted).[20]

[ . . . ]

Under the FAA, courts may vacate an arbitrator’s decision “only in very unusual circumstances.” That limited judicial review, we have explained, “maintain[s] arbitration’s essential virtue of resolving disputes straightaway.”  If parties could take “full-bore legal and evidentiary appeals,” arbitration would become “merely a prelude to a more cumbersome and time-consuming judicial review process.” (internal citations omitted).[21]

[ . . . ]

We reject this argument because, and only because, it is not properly addressed to a court.  Nothing we say in this opinion should be taken to reflect any agreement with the arbitrator’s contract interpretation, or any quarrel with Oxford’s contrary reading.  All we say is that convincing a court of an arbitrator’s error—even his grave error—is not enough. So long as the arbitrator was “arguably construing” the contract—which this one was—a court may not correct his mistakes under § 10(a)(4). (internal quotation marks omitted).  The potential for those mistakes is the price of agreeing to arbitration.  As we have held before, we hold again: “It is the arbitrator’s construction [of the contract] which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.”  The arbitrator’s construction holds, however good, bad, or ugly. (internal citations omitted).[22]

Mr. Rodriguez may be eager to show that this was Mr. Horowitz’s first decision as a neutral arbitrator pursuant to the CBA, succeeding his predecessor Shyam Das, who was terminated by MLB after overturning a 50-game suspension for Mr. Braun before the 2012 season.[23]  While, for example, proving that an arbitrator had accepted a bribe in exchange for a particular result could encourage a court in vacating an arbitrator’s decision,[24] it seems much less likely for a court to award relief to a petitioner simply due to perceived and alleged “pressure” for the arbitrator to keep his job.

Given the force of SCOTUS’s opinion above, it seems as if a verdict against Mr. Rodriguez is a foregone conclusion, because federal courts are bound by this SCOTUS decision, and the odds that SCOTUS would even grant certiorari to a case that would reverse a recent unanimous ruling–let alone reverse it–appear herculean.  These same longshot odds probably also apply to the evidence that Mr. Horowitz used against Mr. Rodriguez.  Any errors, in that respect, would likely be written off as mere inconsistencies with the Federal Rules of Evidence.  No matter how grave these errors may be, it appears that because Mr. Horowitz “arguably construed” the CBA and the drug-testing agreement, his ruling shall stand.[25]

What about Mr. Rodriguez’s lawsuit against the MLBPA?

This is also a longshot.  Mr. Rodriguez may be disappointed or offended by the union’s announced respect for Mr. Horowitz’s decision and their readiness to vigorously fight Mr. Rodriguez’s federal lawsuit.[26]  Despite this slight, these facts should fall laughably short of finding that the union acted arbitrarily, discriminatorily, or in bad faith,[27] which would be more likely impetuses for a court to rule against the union in union activity.

Can Mr. Rodriguez resume his career as a “lone wolf” separate from the MLBPA?

No.[28]  In fact, reports claim that some MLBPA members inquired about the possibility of revoking Mr. Rodriguez’s membership from the players’ union.[29]  This idea was deemed to be impossible.[30]  So despite all the negative feelings that may arise (and that may have already arisen) out of Mr. Rodriguez’s lawsuit against the union that defended him throughout his career,[31] Mr. Rodriguez is, and will continue to remain, a union member.

[1] Michael McCann, A-Rod faces long legal odds in attempt to keep fighting, SI.COM (Jan. 14, 2014, 9:37 AM), http://sportsillustrated.cnn.com/mlb/news/20140111/alex-rodriguez-suspension-frederic-horowitz-appeal/ (hereinafter “McCann”); See generally Steve Eder, Arbitrator’s Ruling Banishes the Yankees’ Alex Rodriguez for a Season, NEW YORK TIMES (Jan. 11, 2014), http://www.nytimes.com/2014/01/12/sports/baseball/arbitrators-ruling-banishes-the-yankees-alex-rodriguez-for-a-season.html.

[2] See generally Major League Baseball Players Association v. Office of the Commissioner of Baseball, Grievance No. 2013-02 (2013) at 3 (Horowitz, Arb.) (available at http://online.wsj.com/public/resources/documents/ARODMLB01132014.pdf) (hereinafter “Rodriguez 2013-02”); infra note 14 at 46.

[3] Id. at 25-6; Jay Jaffe, Breaking down Fredric Horowitz’s decision in Alex Rodriguez case, SI.COM (Jan. 14, 2014), http://mlb.si.com/2014/01/14/alex-rodriguez-frederic-horowitz-appeal-suspension/.

[4] Rodriguez 2013-02 at 33; Rodriguez 2013-02 at 33 n. 21; infra note 14 at 76; infra note 14 at 76 n. 21.

[5] McCann, supra note 1.

[6] Id.

[7] Associated Press, Rodriguez finalizes $275M deal with Yankees, ESPN.COM (Dec. 13, 2007, 2:21 PM), http://sports.espn.go.com/mlb/news/story?id=3153171.

[8] Id.

[9] See supra note 4.

[10] Rodriguez 2013-02 at 20; infra note 14 at 63.

[11] MLB bans 13, including Alex Rodriguez of New York Yankees through 2014, ESPN.COM (Aug. 6, 2013, 12:06 PM), http://espn.go.com/mlb/story/_/id/9540755/mlb-bans-13-including-alex-rodriguez-new-york-yankees-2014.

[12] Id.

[13] Id.

[14] Complaint at 1, Rodriguez v. Major League Baseball et al. (S.D.N.Y. filed Jan. 13, 2014) (available at http://online.wsj.com/public/resources/documents/ARODMLB01132014.pdf) (hereinafter “Rodriguez S.D.N.Y. Complaint”).

[15] See generally Rodriguez S.D.N.Y. Complaint at 1-42.

[17] Id.

[18] sbp, Comment to McCann, supra note 16.

[19] Oxford Health Plans LLC v. Sutter, 133 S.Ct. 2064 (2013).

[20] Id. at 2065-6.

[21] Id. at 2068.

[22] Id. at 2070-1.

[23] Rodriguez S.D.N.Y. Complaint at 39.

[24] See 133 S.Ct. at 2068, supra note 21 (surmising by this author that such a hypothetical scenario may be deemed a sufficiently “unusual circumstance”).

[25] Id. at 2070-1, supra note 22.

[26] Jeff Passan & Tim Brown, Sources: MLB Players Association would expel Alex Rodriguez – if it could, YAHOO SPORTS (Jan. 22, 2014), http://sports.yahoo.com/news/mlb-players-association-would-expel-a-rod-if-it-could-171857810.html (hereinafter “Passan & Brown”).

[28] Passan & Brown, supra note 26.

[29] Id.

[30] Id.

[31] See Id.; See also McCann, supra note 27 (proffering that “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”).


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