A-Rod's attorneys seem to be planting seeds for much broader lawsuit

Monday August 19th, 2013

Alex Rodgriguez's legal team's recent strategy of attacking the Yankees is motivated by a mixture of public relations and the law -- with the possibility of pretrial discovery way down the road perhaps being his biggest threat.

From a PR standpoint, the more the scandal is perceived as a "Yankees scandal" or a "baseball scandal," the less it is viewed as an "A-Rod scandal" and the more inclined baseball might be to work out a settlement with Rodriguez.

In recent days, for instance, the player's legal team has blasted the Yankees for trying to damage Rodriguez's health. Chief among the accusations is that Yankees president Randy Levine told Rodriguez's hip surgeon, Dr. Bryan Kelly, that he didn't want to see Rodriguez play again and that team officials knowingly hid magnetic resonance images of Rodriguez. A team president urging a doctor to botch a player's surgery, for example, is the kind of outrageous allegation that, if true, would warrant front-page headlines and bump Rodriguez as the lead villain. Rodriguez wants the public to view the scandal as more complex and conspiratorial than simply whether he used performance-enhancing drugs. In the world painted by Rodriguez, some of those around him have committed acts far worse than using PEDs and blame should be directed at them.

Rodriguez is also setting the table for a lawsuit against baseball and the Yankees. He's unlikely to sue before arbitrator Fred Horowitz makes a decision later this year, as a judge would probably dismiss such a lawsuit as "not yet ripe." What also remains unclear is whether Rodriguez would accept a reduced suspension from Horowitz -- say 100 games -- or whether he would file the lawsuit if Horowitz doesn't overturn all 211 games. A-Rod's silver lining is that he is not limited to challenging the 211-game suspension or Horowitz's review of it. Rodriguez could also sue for conspiracy to commit fraud, defamation and collusion under state and federal antitrust laws. The possibility of additional legal claims suggests a legal strategy in comments by Rodriguez's attorneys: plant the seeds for a much broader lawsuit than solely contesting the suspension.


Take the allegations that Levine ominously told Kelly he didn't want to see Rodriguez play again and that the Yankees engaged in other "downright terrifying" acts connected to Rodriguez's health. If there is any real evidence supporting these charges -- Rodriguez's attorney, Joe Tacopina, says he has damning emails -- Rodriguez could assert the Yankees undertook unlawful acts to relieve themselves of their contractual obligation to pay him. If Rodriguez could not play, so the thinking goes, some of his salary would be paid by an insurance company, thereby saving the Yankees millions. If successful in such a lawsuit, Rodriguez would be able to recover millions in damages from the Yankees (who would also likely face a lawsuit by the insurance company). Rodriguez would even recover damages even if the suspension holds up, since a successful lawsuit for fraud would reflect New York law, not baseball's CBA or joint drug agreement.

The Yankees, for their part, have categorically rejected any allegations of health fraud. The Yankees have even offered to release all of their medical records for Rodriguez, provided Rodriguez consents to the release (Rodriguez must consent or the Yankees could violate state and federal laws for disclosure of an employee's medical records). The Yankees also insist dubious health decisions related to Rodriguez were those he made himself, such as receiving treatment from Biogenesis and disgraced physician Anthony Galea. The Yankees also have logic on their side: it seems far-fetched to believe team officials would encourage a doctor to botch a surgery. It equally perplexing why those officials would expect a doctor, who could face criminal charges and a loss of a medical license for intentionally botching a surgery, would go along with such a nefarious plan.


Rodriguez could also argue officials from baseball and the Yankees have defamed him. The most obvious grounds for a defamation lawsuit would be baseball's statements accompanying the suspension. Baseball insists Rodriguez used PEDs and covered up his use through obstruction and dishonesty. These are statements expressing alleged facts that, if untrue or inaccurate, seemingly defame Rodriguez and provide him grounds for recovery.

Remarks by Yankees officials also supply potential grounds for defamation litigation. Over the weekend, Yankees general manager Brian Cashman told media he was lied to about whether Rodriguez wanted a second opinion for the Yankees' diagnosis of his strained quadriceps. Cashman insists Rodriguez assured him he was comfortable with the diagnosis but then Rodriguez's doctor, Michael Gross, contradicted that account during a radio interview. Cashman's remarks portray Rodriguez as a liar or deceiver, which could provide additional grounds for Rodriguez to sue for defamation.

It is also possible Rodriguez could charge that baseball and Yankees' officials have strategically leaked untrue information in an effort to defame him. Just last week, for instance, 60 Minutes reported that members of Alex Rodriguez's "inner circle" turned over evidence linking Ryan Braun and Francisco Cervelli to Biogenesis to Yahoo! Sports. As examined on SI.com, Braun and Cervelli might now sue Rodriguez and the players' association could expel him as a member. It is plausible that either baseball or Yankees' officials provided 60 Minutes with this information.

To be sure, a defamation lawsuit would face legal obstacles. For one, Rodriguez has no subpoena power to compel media outlets or journalists to reveal sources of leaked information. His suspicions may therefore never rise to assertions. Second, Rodriguez is a public figure and public figures have to meet the higher legal threshold of "actual malice" in defamation lawsuits. Rodriguez would have to prove not only damaging lies were said about him, but that those who made the remarks knew or had good reason to know the remarks were untrue. Third, baseball can argue it is within its right to investigate and sanction Rodriguez, and issue accompanying statements about those activities. The NFL succeeded in having a judge dismiss Jonathan Vilma's defamation lawsuit against Roger Goodell in part for that reason.


Perhaps the most threatening lawsuit by Rodriguez would be one based on collusion: namely, that baseball and Yankees officials have colluded against him. Rodriguez would probably have to first make such a claim through baseball's grievance process and specifically through Article XX(e) of the CBA. Article XX(e) forbids teams from conspiring other teams against players. Rodriguez might contend baseball and Yankees officials have engineered a boycott of his services to advance other goals. For baseball, it issues a landmark suspension and thereby deters other players from using PEDs; for the Yankees, it won't have to pay Rodriguez about $34 million while he serves a 211-game suspension and the team may try to void the remainder of Rodriguez's contract.

If Rodriguez attempts to bypass the grievance process and go directly to court, he would likely make a collusion claim under antitrust law. The structure of such a claim could take different forms, but it would likely portray baseball and its teams as having a monopoly over professional baseball and as refusing to deal with Rodriguez in anticompetitive ways. Although MLB enjoys a historical exemption from federal antitrust law, the exemption was limited by the Curt Flood Act of 1998. The exemption no longer extends to labor relations matters at the big league level, which suggests Rodriguez could file an antitrust suit.

Chances are, however, a antitrust lawsuit would not go too far, especially if Rodriguez does not first use baseball's grievance process to resolve such a claim. Rodriguez would have to show real evidence of conversations between baseball and Yankees officials about engineering a plot against him. While the idea of such conversations seems far-fetched, baseball does have a troubled past with collusion. MLB teams colluded against free agent players in the 1980s by agreeing to not sign other team's free agents, thereby depressing player salaries. Barry Bonds, for his part, also claimed teams colluded against him. But for Rodriguez, he would have to explain why baseball would collude with one team, the Yankees, when rival teams presumably want the Yankees on the hook for paying Rodriguez?

Power of Discovery

While none of Rodriguez's potential legal claims seem persuasive, one or more of them might show enough to overcome a motion to dismiss. Therein lies Rodriguez's real threat: if a lawsuit isn't dismissed by a judge, baseball and Yankees officials would have to contend with pretrial discovery. Rodriguez's attorneys would demand sensitive documents that might portray baseball and Yankees officials in a negative or embarrassing light. For instance, what if evidence emerges suggesting Yankees officials knew of Rodriguez using PEDs years ago but encouraged his use because he was playing so well? Would baseball then have to sanction the Yankees in addition to Rodriguez? Would insurance companies consider litigation against the Yankees and baseball?

These and similar worries may be mere wishes by Rodriguez and his attorneys. But if they are in any way real -- and recall how the Mitchell Report portrayed some team officials as arguably complicit with players' use of PEDs -- it may be worth it for baseball to offer Rodriguez a reduced suspension. And it may be worth it for Rodriguez, with dwindling options and a deteriorating reputation, to accept it.

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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