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MLB still trying to get evidence that A-Rod obstructed the Biogenesis investigation

Dec 12, 2013, 8:51 AM EDT

Alex Rodriguez Reuters Reuters

Alex Rodriguez‘s P.R. guy, Michael Sitrick, was allegedly served with a subpoena by Major League Baseball. They wanted him to testify in the arbitration as to whether he or his underlings leaked Biogenesis documents implicating Ryan Braun and Francisco Cervelli to the press. MLB believes that he did, and by doing so A-Rod — through his rep — impeded the Biogenesis investigation, thereby requiring that A-Rod receive a greater suspension than everyone else.

Problem: Sitrick did not appear to testify and the arbitration is now closed. And, as Rich Calder of the New York Post reports, MLB and Sitrick are fighting the matter of his subpoena out in court, with MLB trying to reopen the arbitration to get his testimony in.

Lots of legal things in there that are of interest to some of you, but the bigger take here: if Major League Baseball is frantically trying to get evidence of A-Rod’s obstruction after the arbitration is closed, how strong could their obstruction case as presented in the arbitration actually be? And if it’s not strong, what possible basis is there for a suspension more than four-times greater than that provided by the Joint Drug Agreement?

I’d guess that the evidence that A-Rod did something wrong, thereby justifying a suspension of some sort is pretty good as it compares to all of the other players who got 50-65 game suspensions out of all of this. But the case for over 200 games sounds like the weakest sauce imaginable.

  1. umrguy42 - Dec 12, 2013 at 9:14 AM

    Based on the wording presented originally (“through the end of the 2014 championship season” IIRC), it’s not a set # of games, it’s just “through the end of 2014″, so at this point, it’s only just over 3x the length. Still think that it may have been a cynical attempt by MLB to have a big starting point so that if it got knocked down in arbitration, 50 games (or more) might seem “reasonable” enough to stick…

    • kcfanatic - Dec 12, 2013 at 4:36 PM

      Wouldn’t it be great if the arbitrator waited until October 1 to make his decision, and then upheld it? A-Rod would get about a 15 day suspension and be paid a butt load, and the Yankee’s would get screwed out of money.

  2. DelawarePhilliesFan - Dec 12, 2013 at 9:14 AM

    Or they are just playing the same “I’ll throw everything at you I can think of until the end of time” game that A-Rod is playing.

    I could eat these words, but I really, really, really doubt that they had nothing on on him beyond what they had against Braun, which to me suggests that whatever dirt they believe they have aginst the PR guy is somethign new. But we shall

    • number42is1 - Dec 12, 2013 at 9:24 AM

      we shall what? WHAT SHALL WHAT?????? come on.. you can’t do this to us….

      • cackalackyank - Dec 12, 2013 at 10:01 AM

        Gonna go way out on a limb here and say that what you are looking for is “see”.

      • DelawarePhilliesFan - Dec 12, 2013 at 10:08 AM

        We shall overcome.

        We shall overcome someday… overcome ADD that has us hit send too early… overcome keyboards that let us down…..overcome a posting board with no edit function.

        We shall overcome. We shall

  3. lazlosother - Dec 12, 2013 at 9:16 AM

    I don’t understand why MLB could compel A-Rod’s people to testify through a subpoena, but A-Rod’s reps could not do the same for the worm. Craig?

    Also, if the decision comes down is MLB stuck with it, or could they argue to reopen the process?

    • billybawl - Dec 12, 2013 at 12:32 PM

      I’m not Craig, but I am a labor lawyer so I’ll chime in. ;-) I think the arbitrator decided that Selig’s actions were irrelevant as to whether Rodriquez violated the CBA. The grievance/arbitration process in this case is limited to whether discipline is warranted under the CBA. This latest witness is at least arguably relevant, but I’d be really surprised if the arbitrator reopened the hearing. Maybe if the witness were somehow unavailable or trying to evade the subpoena or similar, but even then it’s highly unusual. Never happened in my experience.

      Federal courts are loathe to overturn arbitration decisions. Even if the arbitrator gets the facts or law wrong, the idea is that the parties agreed to live with arbitration. You’ll find courts that overturn arbitrations occasionally, but not often. One way to get an arbitration tossed is if there is some fraud on the part of the arbitrator — e.g., we find out that the arbitrator is Selig’s brother-in-law or colluded with one side. Another exception is that a decision is against “public policy”, which courts once invoked to overturn arbitral decisions they really hated — e.g., an employee reinstated in spite of overwhelming evidence they had dealt drugs at the workplace, or threatened co-workers with a gun, etc. But these exceptions are really rare and its easier to get sanctions and attorneys fees against a party that tries to challenge an arbitration decision.

      For what it’s worth, this arbitrator is very experienced, highly respected and will not lose any business or a wink of sleep if his decision is unpopular with either side, or even gets him fired from future MLB cases. His reputation with other practitioners is far more valuable than future MLB cases. All the pressure and outside stuff is just noise that he will tune out.

      • churchoftheperpetuallyoutraged - Dec 12, 2013 at 4:00 PM

        Thank you for your response.

      • anxovies - Dec 12, 2013 at 4:16 PM

        Good analysis, counsel. Just wondering if Mr. Strick simply did not appear or if he filed a notice of non-appearance. Could this be a belated hearing on a motion to compel? If so, then the arbitrator might consider reopening if the court issues an order compelling him to obey the subpoena. Or the court could consider the motion to be moot since the labor proceedings have been closed.

      • billybawl - Dec 12, 2013 at 6:12 PM

        Agree with you there anxovies. I actually read the article and see some points I didn’t catch or see in the post. Looks like the subpoena was issued back before Thanksgiving, so during the hearing. The witness didn’t show up and is challenging the subpoena by appealing it in court. So the witness triggered this round, not MLB. It appears that part of MLB’s response to that appeal is to say time is short for applying to the panel to reopen the hearing. I’m a bit confused that if MLB really wanted this guy’s testimony so badly it seems they could have forced the issue earlier. We also don’t know if MLB asked the arbitrator to reserve the right to request reopening the hearing pending the outcome of this appeal on the subpoena. Not sure it matters. As a practical matter, this is why it’s very risky to build a case through hostile witnesses — they challenge subpoenas, lie on the stand, etc. Maybe MLB figured it wasn’t the end of the world to have it look like A-Rod’s former rep was making himself scarce. But they also had to put up some kind of fight in the appeal.

  4. largebill - Dec 12, 2013 at 9:20 AM

    Craig,

    Question about the options available to the arbitrator. If there is no legitimate basis for imposing a much harsher penalty than the CBA allows, would it be completely out of the realm of possibility that the arbitrator would go for something far less than the 50 games (maybe no suspension) to deter MLB from taking such excessive action in the future? Reason I ask is, if suspension is merely reduced to what it would have been anyways then MLB has lost nothing by attempting to impose an excessive punishment.

    Okay, okay, real reason I ask is I’m not a Yankees fan and want them to have to live with the cost of that contract.

  5. lirianod - Dec 12, 2013 at 9:23 AM

    How exactly is the leak of more suspects impeding an investigation?

    I can’t wait to see the MOUNTAIN of EVIDENCE!!

    • rdillon99 - Dec 12, 2013 at 9:37 AM

      Yeah, it sounds to me like MLB wants this evidence from Sitrick to establish that ARod’s representatives leaked info about other players to take the heat off of him. If that evidence came out, it would certainly serve to further embarrass ARod but I don’t really see how it necessarily proves obstruction of the investigation… Maybe further embarrassment is the goal.

      • lirianod - Dec 12, 2013 at 10:15 AM

        I don’t even believe the premise that leaking the names of Braun and Cervelli would take the heat off of ARod. Having Braun in the mix would just (imo) elevate the validity of the reports at the time. But Cervelli? No one cares about him. His interview with Newsday barely got any traction. Why would leaking these two names take the heat off of ARod?!

  6. cackalackyank - Dec 12, 2013 at 10:21 AM

    The smell of desperation is on both parties in this thing. I really think A-rod is guilty, but I also think there is something like a vendetta going on here, though. It feels like MLB has over reached with the 211 games and they will do just about anything to keep it alive. Not my call, but if it was, I would say 50 games for PEDs, and 25 for behavior detrimental, and let’s get back to baseball.

  7. rathipon - Dec 12, 2013 at 10:37 AM

    Why the assumption that MLB even has good evidence against any of the other offenders who took 50 game suspensions? Does nobody find it interesting that players who routinely appeal small suspensions for throwing at a hitter, etc, decided not to appeal here? Even in the absence of an actual failed drug test not a single person other than A-Rod decided to spend a few bucks on lawyers and roll the dice? The word of a crook along with some documents that had to be purchased by MLB on the black market was enough to entice these players to give up without even a peep???

    The only reason that makes sense for why these players wouldn’t appeal is the threat of something worse if they did. That’s what I believe was happening here. You saw it with A-Rod. Accept the one year suspension or we’ll give you an even bigger suspension. It’s a basic prosecutorial tactic. But when in the past have you heard the word ‘plea bargain’ associated with MLB discipline?

    So the guys that got 50 games were probably presented with a choice. Agree to take the suspension without appealing, and keep quiet about it, or we’ll give you a lot more than 50 games.

    So now MLB is scrambling to get more evidence even though the arbitration is completed. Craig is right: it seems almost desperate. Wouldn’t it be kind of hilarious if an impartial arbitrator ended up deciding that the correct suspension, given the evidence at hand, is -zero- games? I wouldn’t bet against it. The final ridiculous overreach of Bud Selig’s tenure.

    • carlosguillensbatflip - Dec 12, 2013 at 11:35 AM

      I’m not sure about some of the lower profile players, but I know three of the big names had a real compelling reason to just accept the suspension and move on.

      Ryan Braun accepted a higher suspension of 65 games becuase that just happened to be how many games were left in the season and his camp figured it would be best if he just sat the rest of the year since the Brewers were already out of the playoff hunt. That way he could get healthy and focus on being ready for spring training next year, which he probably wouldn’t been available or if he appealed. Not to mention the added benefit of being able to lay low for a while instead of hearing about it every game he played during the appeal process (see: every A-Rod game during appeal).

      Jhonny Peralta took the 50 games so he could serve out the suspension and still be back for the playoffs, which according to the Cardinals was apparently a smart decision. Same with Nelson Cruz. Cruz even went as far as to say he basically didn’t have a choice to appeal, the team wanted him to get the 50 games over with so he’d be back for a postseason run.

      I’m not disagreeing that Selig is totally overreaching with A-Rod and probably some of these other players, but they did have some pretty compelling reasons to not appeal that didn’t have anything to do with the treat of a greater suspension.

    • DelawarePhilliesFan - Dec 12, 2013 at 3:51 PM

      I hear what you are saying – but the reality is guys who appeal a 3 game suspension for charging the mound are quiet successful in getting some sort of reduction. With this, its all or nothing. So any player would have to decide to they want to go through the hassle and potential embarrassment, or just quietly accept it and walk away.

      The documents purchase on the black market – but where they came from is irrelevant. The bottom line is a prescription for drugs is a violation under the CBA. That is what Manny got suspended for the second time – he appealed the failed test but then dropped the appeal when MLB produced the prescription.

      That was why Michael Weiner encouraged players to accept it – once the documents were produced, they were screwed. Think about it. Imagine someone like Antonio Bastardo says “I am appealing this!” He walks into the appeal, MLB hands the arbitrator the prescription note (purchased on the black market), and 30 seconds later the arbitrator says “the 50 game suspension stands”. He ends up right were he started, AND he looks like a weasel, and he just wasted Union resources on a defense that never was going to work.

      Looking at it in that light, it makes perfect sense that they take the medicine, and hope everyone forgets about it

  8. deathmonkey41 - Dec 12, 2013 at 10:51 AM

    Okay, granted I never went to law school and gathered all my knowledge of trial law from watching re-runs of Matlock, but why didn’t they go with the “LEAVE A-ROD ALONE!!!” defense?

  9. rbj1 - Dec 12, 2013 at 11:28 AM

    Leaking evidence is impeding the investigation? So when is MLB going to sanction Bud Selig and Rob Manfred? Don’t tell me those two have clean hands.

  10. Old Gator - Dec 12, 2013 at 11:39 AM

    I understand that next season A-Roid will appeal in a two hour special season opener of Cold Case.

  11. byjiminy - Dec 13, 2013 at 1:04 AM

    Evidence you haven’t heard doesn’t “sound like” anything. It has no sound at all.

    Trying to include additional evidence doesn’t necessarily say anything about the evidence you already had. It MAY imply you’re dissatisfied with what you’ve got. That’s worth speculating about, but I can think of many, many other explanations.

    Why not try to include all the evidence you can find? I would.

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