Analyzing the legal fallout from Alex Rodriguez's 211-game suspension

Monday August 5th, 2013

Alex Rodriguez has vowed to fight his 211-game suspension. It will start with an arbitrator and could end up in court.

After failing to negotiate a settlement with Alex Rodriguez, commissioner Bud Selig has suspended the three-time MVP for 211 games. The suspension, which goes into effect on Thursday, is the longest non-lifetime suspension in baseball's 139-year history. Unless overturned or reduced, the suspension will keep Rodriguez out of the game until 2015 and will cost him approximately $34.1 million in salary (A-Rod can play until an arbitrator rules on his appeal). The dramatic move sets the table for Rodriguez to wage a historic legal challenge against Major League Baseball. Here's what we can expect in what will be a long and ugly process.


Rodriguez will reportedly appeal the suspension, which would allow him to play pending the appeal. An appeal would be heard before an independent arbitrator, Fred Horowitz, most likely in September. Arbitration is similar to a trial in that evidence is presented and witnesses testify, but it is much less formal and rules of procedure are relaxed.

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Rodriguez may take some solace in knowing that the last time a player challenged a lengthy suspension, he succeeded in arbitration. In 1992, Yankees pitcher Steve Howe fought a lifetime suspension issued by commissioner Fay Vincent. Howe was a seven-time drug offender and had recently pleaded no contest to attempting to purchase cocaine. Howe also suffered from Attention Deficit Disorder, which his attorneys contended contributed to his drug problem. In issuing a lifetime suspension, Vincent reasoned that Howe had enough failed chances and that baseball needed to send a zero tolerance message about illegal drugs.

In reviewing Howe's appeal, arbitrator George Nicolau established an important legal principle for Rodriguez in his appeal: the commissioner's penalty must "be reasonably commensurate with the offense" and prove "appropriate given all the circumstances." A lifetime ban, Nicolau emphasized, is "the ultimate sanction" and should be reserved only for the most extreme infractions. Such a ban essentially constitutes an industry-wide boycott of one player, since it "prevents a player's employment by anyone at any level of his chosen profession."

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Even though Nicolau acknowledged that baseball had an interest in deterring drugs, deterrence "should not be achieved at the expense of fairness." Nicolau commuted Howe's lifetime ban to 119 days, which prompted a disgusted Vincent to quip, "It's like saying you've had seven chances, but eight is the right number." While Rodriguez's suspension falls short of "the ultimate sanction," Rodriguez would emphasize that it exceeds all other non-lifetime suspensions and would portray it as disproportionately long.

Horowitz would have flexibility in reviewing Selig's decision. He could 1) sustain the suspension; 2) reduce the length of the suspension; or 3) overrule the suspension. It is also possible that Rodriguez and baseball agree to a settlement before Horowitz takes any action.


Rodriguez could sue Major League Baseball, Selig and perhaps the Yankees, though he would probably wait until after Horowitz's arbitration decision. Judges normally dismiss lawsuits as "not yet ripe" until there is a complete and final record; a complete and final record for Rodriguez would be final word on his suspension. Rodriguez should not expect to circumvent established procedure: as a member of the players' association, Rodriguez is bound by the required methods of dispute resolution detailed in the CBA. The arbitration process is one such method. Also, given that Rodriguez could be awarded back pay if he wins in arbitration, there is no pressing reason for a judge to hear his dispute before arbitration.

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If Rodriguez sues, he would likely ask a judge to immediately enjoin baseball from suspending him and seek a trial for money damages for lost pay and harm to his reputation. His chances of success would be slim. If he sues now, the lawsuit would likely be dismissed on timing grounds; if he sues after a failed arbitration, a court would review the arbitration decision against him with deference. Although judicial review of arbitration decisions is an area of law in flux, the traditional standard of review -- and one used in the U.S. Court of Appeals for the Second Circuit, the judicial circuit where Rodriguez's lawsuit would likely be heard -- is "manifest disregard of the law." It is uncommon for a court to change an arbitration decision under this standard. Rodriguez would have to show that Horowitz ignored established principles of law. Given Horowitz's background -- an attorney with nearly 25 years of experience as a mediator -- it seems unlikely that would happen.

Rodriguez's legal arguments

In his appeals for relief through arbitration and possibly litigation, expect Rodriguez to raise these types of arguments:

1. The Joint Drug Agreement does not authorize a 211-game suspension for a first-time offender

In punishing Rodriguez, baseball cites the Joint Drug Agreement. This document details specific game suspensions should a player participate in the sale or distribution of prohibited substances. A first-time offense carries a maximum 100-game suspension and a second-time offense carries a maximum permanent suspension. Rodriguez has never before been punished, which would make him a first-time offender. Baseball, however, portrays Rodriguez's conduct as repeatedly in violation of baseball rules. Rodriguez seems to have the advantage here: either he's a first-time offender or he is being punished by some other source of law unmentioned by baseball.

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2. The Joint Drug Agreement was intended to be the exclusive remedy for PED issues

Baseball's statement of punishment also cites the basic agreement (CBA) as a secondary source of law to punish Rodriguez. It is expected baseball will clarify this citation, though the league is likely referring to Article VII (B), which concerns conduct detrimental to baseball. VII(B) dictates that "Players 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."

Rodriguez will argue this vague language does not justify a massive jump in penalty from 100 games to 211 games. For one, there is no precedent of the language being used as such. Second, Rodriguez will say his conduct lacks the necessary wrongness: he didn't test positive for drugs, didn't bet on baseball or throw games and has neither been charged with nor convicted of a crime.

Rodriguez will also claim the Joint Drug Agreement was intended to be the exclusive remedy for players implicated by PEDs. After all, why would owners and players negotiate a separate agreement specifically for disputes arising from prohibited substances if the commissioner can instead use the CBA to sanction a player for a dispute arising from a prohibited substance? Rodriguez can portray Selig as undermining the spirit of the Joint Drug Agreement by punishing him through the CBA.

Baseball, however, can argue that Rodriguez's conduct extends beyond use of performance enhancing drugs to other misdeeds, including allegations of lying and intimidating witnesses. Baseball can also emphasize that if the Joint Drug Agreement was intended to be exclusive, it would say so.

3. The evidence cannot be believed

Rodriguez will portray the evidence against him is based on untrustworthy testimony and hearsay. To advance this argument, Rodriguez will utilize the right to discovery of baseball's implicating evidence. Although in different forms, this right is available in both arbitration and in a lawsuit.

Specifically, expect Rodriguez to attack the evidence shared by Biogenesis director Tony Bosch -- who baseball portrayed as a drug dealer a few months ago in a lawsuit -- as unreliable and biased. Bosch, Rodriguez is likely to contend, has tried to make himself seem useful to baseball in exchange for being dropped from the Biogenesis lawsuit and for possibly gaining baseball's assurances that it would speak well of him should he face any criminal charges.

Baseball, for its part, can defend Bosch's evidence by noting that every player involved with Biogenesis except Rodriguez has declined to contest a punishment. Put another way, if Bosch is so unbelievable, why would Ryan Braun and the other players agree to lengthy suspensions that are premised largely on Bosch?

One word of caution for Rodriguez: discovery is a double-edged sword. As the New York Daily News reported, baseball would share information it obtains about Rodriguez with federal prosecutors should the government subpoena MLB. While Rodriguez is unlikely to face criminal charges, those charges are possible if evidence materializes that he transported illegal drugs across state lines.

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4. Baseball and the Yankees have colluded to make voiding his contract possible

Generally teams are upset when their players are suspended, but the Yankees are likely celebrating Rodriguez's expulsion. Unless Rodriguez succeeds in overturning or shortening the suspension, the Yankees will be relieved of paying him $34.1 million of the approximately $100 million remaining on his contract.

Rodriguez may portray baseball and the Yankees as coordinated in their efforts. To link such an argument to law, Rodriguez would cite collusion language in the CBA. Under Article XX(e), teams cannot conspire with other teams to deprive players of collectively-bargained rights -- including the right to play baseball. Absent smoking-gun evidence, collusion would be a long-shot claim for Rodriguez. Baseball could stress that many more teams are angry by this suspension than happy by it. In particular, the Red Sox, Orioles, Rays and Blue Jays just lost a strategic advantage over an AL East rival, since the Yankees can now reassign money that would have been paid to Rodriguez to other players. Given the wild card playoff spot, other American League teams probably feel similarly.

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Still, think of what MLB gains from Rodriguez's suspension. The league uses the least likable player in the game, who happens to be breaking down at age 38 with hip and knee problems, to send a powerful message that cheating will not be tolerated. Would baseball have issued such a severe sanction of a player who fans, media and teammates might have rallied around? Furthermore, Rodriguez might argue, the precedent set by his suspension makes it easier for baseball to suspend other players -- and, of attraction to team owners, to relieve their teams of paying "guaranteed" contracts.

Now think of what the Yankees gain. They save at least $34.2 million. They are also poised to void the remainder of Rodriguez's contract, which runs through 2017. The Yankees would justify it through language in the Uniform Player Contract. Per Paragraph 7(b), the Yankees would say baseball's suspension of Rodriguez proves he failed to conform his personal conduct to the standards of good citizenship and good sportsmanship. The Yankees would also argue, per 7(b), Rodriguez disobeyed training rules by failing to notify them that he would seek a second opinion from Dr. Michael Gross. Rodriguez's use of Twitter to share rehab information may also have run afoul of team rules. The Yankees would claim Rodriguez's assorted missteps constitute a breach of contract.

The Yankees would face long odds. Teams have consistently failed at voiding contracts. This is true even when players plead guilty to drug crimes. Rodriguez would take any such attempt to a grievance proceeding and history would be on his side. While the Yankees may not prevail, there is precedent of teams and players negotiating buyouts. After Denny Neagle was charged with soliciting a prostitute, for example, he and the Rockies agreed to end their contract. The Rockies agreed to pay him about $16 million of the remainder of a $19.5 million contract. Perhaps Rodriguez and the Yankees could negotiate a similar buyout of the remainder of his post-suspension contract. It would be the kind of settlement that Rodriguez failed to reach with baseball.

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5. MLB and Selig have defamed Rodriguez

Should Rodriguez turn to the courts, a lawsuit would likely contain a defamation claim. Much like Jonathan Vilma's lawsuit against Roger Goodell in the wake of Bountygate, Rodriguez would argue that baseball has falsely implicated him and damaged his reputation. Rodriguez might also assert baseball has strategically leaked information to media to paint him in a damning light. While difficult to prove -- and journalists are under no legal obligation to confirm or deny such a claim -- Rodriguez would raise this contention to portray Selig as biased and slanderous in his administration of power.

As a public figure, Rodriguez would have a high legal threshold to prove a defamation claim. He would need to show baseball lied with "actual malice," meaning baseball knew or had good reason to know the information shared about Rodriguez was untrue. As a result, if baseball reasonably relied on information that damaged Rodriguez's reputation but later proved false, Rodriguez would probably fail to win a defamation suit. Baseball can also argue that a defamation lawsuit is barred by the CBA, though Rodriguez would contend that legal claims concerning the reputation of players fall outside the CBA's scope.

Role of the MLPBA and other players in Rodriguez's fight against MLB

Rodriguez probably expects the players' association to fight hard for him. The players' association has a fiduciary duty to Rodriguez and to other big league players, who (at least in theory) are now more vulnerable to long suspensions that may justify teams voiding their contracts. On the other hand, the players' association will question the upside of vocally defending a player viewed by many as a steroids villain in the twilight of his career. Does executive director Michael Weiner want his association connected to Rodriguez in the eyes of fans, media and lawmakers? Plus, Selig did not use the CBA to punish Rodriguez; had he done so, the players' association would have felt more motivated to fight.

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Rodriguez likely also anticipates sincere support from other players. After all, Rodriguez has helped raise their salaries through the market-elevating effect of his contracts (10-year, $275 million in 2007; 10-year $252 million in 2000). It's safe to say, in other words, Rodriguez has made many millions of dollars for other players. Then again, Rodriguez is regarded as one of the least likeable players in baseball. He's also something of a "lame duck" in that his career is much closer to the end than the beginning, and players won't be encountering him around the game for too much longer.

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.

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