Ham: How A-Rod Could Be Guilty And Still Win

By Eldon Ham-

(CBS) On Jan. 13, lawyers for Alex Rodriguez filed suit against Major League Baseball and the MLB Players Association. The lawsuit paints the picture of a kangaroo baseball court that showed little regard for process, law or even the league’s own Joint Drug Agreement (JDA), while it affirmed yet also reduced the Rodriguez suspension from 211 games to 162. Many experts believe Rodriguez won’t be able to overturn the suspension.

But not so fast. Rodriguez could still prevail.

The independent arbitrator is a highly qualified labor lawyer named Fred Horowitz, who was appointed after MLB fired Ryan Braun arbitrator Shyam Das for daring to rule against the MLB after a baseball representative took Braun’s test sample home for a weekend frolic instead of following the protocols for maintaining a credible chain of custody. Soon thereafter, Braun’s wayward sample tested positive. Yes, he was probably guilty unless someone had tampered with the sample, and while his subsequent acceptance of a 65-game suspension for the separate Biogenesis scandal (which also implicated Rodriguez) is not a formal admission, it does corroborate the veracity of the original sample.

Even so, the Das arbitration decision in favor of Braun was correct. Baseball had gotten too loose with protocol and deserved a loss on those first Braun testing missteps. But baseball and commissioner Bud Selig took offense, exacting retribution by firing Das as an arbitrator. This act of hostility not only established a dubious precedent of intimidation, it set the stage for a series of flawed-if-not-arrogant acts on both sides that would later be part of what has now become the Rodriguez fiasco.

In his federal complaint, Rodriguez now raises a plethora of issues about a number of alleged MLB missteps. Two of those could even lead to a Rodriguez court victory, depending on the rest of the evidence if the case gets that far. He also could have argued, as he now implies, that baseball had “unclean hands,” meaning that MLB allowed the steroid era in the first place by looking the other way. It is a good philosophical argument as a backdrop, but the better Rodriguez arguments are more specific.

First, the original panel may have prejudged the Rodriguez arbitration. Two of the three panelists could not keep quiet, sharing various prejudicial remarks with the press. Prejudging an arbitration is one of the few reversible acts of arbitrator misconduct that is recognized by the courts. (Similar grounds had almost led to a victory by Pete Rose against commissioner Bart Giamatti in the Rose gambling case of 1989 and may have become an actual victory had Rose not given up and accepted a suspension.)

The two arbitration panelists that Rodriguez complains about were Robert Manfred, the COO of MLB who was appointed by MLB, and David Prouty, appointed by the MLBPA. Horowitz, the independent arbitrator (who nonetheless serves at the behest of MLB), ruled against Rodriguez and wrote the finding for all three. Manfred concurred, so the necessary majority votes to suspend Rodriguez were in place. Prouty dissented, giving one vote for Rodriguez.

Rodriguez complains in his lawsuit that Manfred, aside from being an actual MLB official and maybe even the successor to Selig after he retires in 2015, kept expressing his bias publicly well before the findings were issued on Jan. 11, if not before the hearing altogether, including his open letter to Rodriguez publicly offering to waive the confidentiality limitations to expose the mounds of evidence against Rodriguez. The attorney for Rodriguez called the letter a “publicity stunt.” And it might be more than that, possibly constituting evidence of an impermissible bias and prejudgment of the case.

Second, the arbitration decision violates the terms of the governing JDA, which states that the first violation will bring a 50-game suspension, the second violation a 100-game suspension and the third violation a permanent suspension (with possibilities for reinstatement). A violation includes a positive test, which did not occur in the Rodriguez matter, or other use or possession of a performance-enhancing substance (PES), which the Rodriguez fiasco, taken as a whole, suggests did happen. The suspension, though, seems to have been imposed through some catch-all powers for other kinds of misconduct, in this case the alleged interference by Rodriguez in the investigation. It is vague, has no parameters and seems like a blended remedy conjured from JDA sections 7.F and 7.G.2.

This murky distinction could also be grounds for reversal based on arbitrariness or worse: violating the terms of the JDA itself. By implication, the panel felt that the Rodriguez violations were so egregious that they justified skipping the various escalating steps to nail Rodriguez all at once. But there are no grounds for aggregating multiple occurrences to expand upon a “first violation” as defined by the JDA.

For example, if a given professional athlete were to test positive for marijuana under any collectively bargained drug policy, such would be one violation, regardless of whether he smoked three joints before the test. Accordingly, this current fiasco comprises the first violation for Rodriguez under the JDA. Otherwise, virtually all first violations could generate lifetime bans if three instances led up to the violation, but that would make a mockery of the terms and intent of the JDA regulatory scheme.

As a first-time violator, Rodriguez should be suspended 50 games. There is no defined “Class X” violation that allows the league to skip that first step. To do so would be arbitrary, capricious and unreasonable, and it would be grounds for a court to reverse. As a matter of fact, JDA Section 3H expressly prohibits such piling on: multiple positive tests due to the same original drug use don’t escalate the first misconduct from one violation to two to three, etc.

The arbitration panel already scaled back the original 211-game suspension to 162 games, the latter being the equivalent of precisely one season.

It appears that Rodriguez may have violated the JDA in numerous egregious ways, but he nonetheless was officially found guilty only once — essentially a “first” violation. Rodriguez should receive the prescribed 50-game suspension.

A weakness for Rodriguez, however, is that he chose not to testify at his own hearing. He walked out, citing his own grounds that the arbitrator refused to compel direct testimony from, and cross-examination of, commissioner Selig. Maybe that was a decent point to be made, but because Rodriguez walked out, there nonetheless is no contradicting testimony on record that supports Rodriguez. The cynics, of course, would argue that he walked out, at least in part, because he could not truthfully deny the real facts of the matter. Also a good point.

Still, it looks like some of the panel may have prejudged the Rodriguez arbitration. Moreover, guilty or not, the 50-game suspension, although not to MLB’s liking, is still the proper discipline called for under the JDA. The length of the current sentence imposed, together with aggregating his past acts, seems arbitrary.

So yes, Rodriguez could be guilty and still win, which is what should happen if the rule of law is also to prevail.

Eldon Ham is 670 The Score’s legal analyst.

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