New evidence released in A-Rod case, but his options are limited

Alex Rodriguez could have new evidence that MLB acted illegally, but his legal options are limited.
Patrick Semansky/AP

According to a Newsday investigation, Major League Baseball knowingly purchased stolen records to advance its case against Alex Rodriguez. Baseball investigators are also alleged to have been potentially involved in the records' theft. Newsday, which obtained an arrest report authored by Boca Raton Police Department detective Terrence Payne, cites multiple law enforcement officials who say baseball investigators ignored warnings they were buying stolen materials. Payne's report contends that a flash drive containing Biogenesis documents was stolen from the car of former Biogenesis employee Porter Fischer. The report also asserts that Dan Haslem, baseball's top attorney for labor relations, told Payne he tried to buy the flash drive from Fischer, but ended negotiations due to Fischer's "ridiculous" asking price. After the flash drive was stolen, baseball purchased it for $100K from a man named Gary Jones, who is described as a friend of the man arrested for stealing the flash drive.

To be clear, no one from baseball has been charged in the theft of Fischer's flash drive and Payne's report acknowledges probable cause is lacking to arrest anyone else. Baseball also adamantly denies it knowingly purchased stolen evidence. Still, Payne's report threatens to undermine the integrity of baseball's system of justice. The report portrays baseball as buying a flash drive while knowing it was stolen and knowing it was the same flash drive baseball tried to buy before it was stolen. This portrayal is even more alarming given that baseball fired the investigators who Payne argues are implicated by the "evidence" of theft.

For Rodriguez and his attorneys, Payne's report and Newsday's investigation serve as a moral, if not legal, vindication. They have long insisted that baseball built a case against Rodriguez on illegal and unreliable evidence. Rodriguez, who is serving a suspension for the 2014 season, dropped his lawsuit against baseball and the players' association in February.

Should Rodriguez have kept fighting in court?

The answer is probably no, as Rodriguez's suspension likely would have been upheld even with Payne's report. There are at least three reasons why Rodriguez's vindication may be more moral than legal.

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First, while Payne's arrest report implicates baseball, his report is not a finding of guilt. The report is a recitation of facts and information obtained by a police officer who investigated a car burglary. Baseball has not had an opportunity to cross-examine Payne, nor has Haslem—the MLB official whom Payne claims played a decisive role in baseball obtaining the flash drive—had an opportunity to give his side of the story. None of this is to say Payne's report is inaccurate, but police reports have on occasion been found to contain inconsistencies, faulty recollections or allegations unsupported by other evidence. Also, sometimes evidence used to build an arrest report may later be deemed inadmissible because of how the evidence was obtained, handled or stored. In short, we should not automatically equate an arrest report's account with the same account a court might later find.

Second, baseball categorically rejects it had any "knowledge" that the flash drive and its contents were stolen. Notice the use of the word "knowledge." In law, knowledge is not always easy to prove. Knowledge requires a much more certain state of mind than suspicion or even belief. Knowledge would mean that baseball knew, as a fact, the flash drive and its contents were stolen. In contrast, if baseball believed these materials were probably stolen, but did not have actual knowledge they were stolen and made no attempt to find out for sure, baseball can argue it lawfully—if unethically—lacked "knowledge." Is this the kind of legalistic argument baseball would want to raise with media and fans? Probably not. But in court, it would be a different story.

Third, baseball is a private association and thus receives broad deference from courts in how it administers justice. This same theme also rings true in the NBA's pending ouster of Los Angeles Clippers owner Donald Sterling, who was recorded—possibly in violation of California law—making racist comments in private. Rules of discipline that have been agreed to by players, officials and owners—whether it be in collective bargaining agreements, employment contracts or franchise agreements—are generally viewed as binding and difficult to challenge in court. Judges typically review league decision-making, and any associated arbitration, under a deferential standard of "arbitrary and capricious." This standard means that unless a court believes the league acted arbitrarily and capriciously, the league's decision stands. Arbitrary and capricious is not established if a decision was unfair or even wrong: there must be a clear showing the league failed to follow its own rules. Such a showing is particularly hard to establish given that league commissioners are generally viewed as the "final" word on interpreting rules of league justice.

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Rodriguez and Sterling now appear to be in the same boat of league justice: both have been punished by leagues based in part on dubious evidence. Keep in mind, this is evidence that a jury would probably never hear on grounds of inadmissibility. The legal problem for Rodriguez and Sterling is two-fold: leagues play by a different set of rules for what counts as admissible evidence in their "courts" and both men agreed to these rules. The leagues run their own hearings, featuring their own procedures for admissible evidence. While Rodriguez had an opportunity to plead his case before an arbitrator, Frederic Horowitz, arbitration is not a court trial. Rules of evidence in an arbitration are much more lax and informal. There are no jurors in an arbitration. There is no public record. It is private justice.

Going forward, expect the MLBPA to demand tighter rules on admissible evidence in suspending a player. Rodriguez and the MLBPA—former opposing parties in a lawsuit—may not be on the best of terms, but the union knows the type of evidence used against Rodriguez could be used against other players. It is up to the MLBPA to collectively bargain changes in the joint drug agreement that would ensure stolen flash drives and other tainted materials don't form crucial grounds the next time a player is disciplined.

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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