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Either the arbitrator or A-Rod’s lawyers are misrepresenting the record

Jan 14, 2014, 8:23 AM EST

Alex Rodriguez

This, pointed out to me by Scott Lemieux of Lawyers Guns and Money, is most curious.

The big issue I have with the arbitrator’s ruling was his odd tap dance between section 7(A) of the Joint Drug Agreement — which provides for progressive, 50/100/lifetime discipline, and section 7(G) which gives Bud Selig “just cause” power to discipline players.  As I argued last night, I think the arbitrator botched this and should have considered it all a first offense for A-Rod under 7(A).

But, in many ways, the issue is moot. Because, as Horowitz stated in his opinion, the MLBPA and A-Rod conceded the point, agreeing that section 7(G) and “just cause” apply:

source:

But check this out, from A-Rod’s complaint filed in federal court yesterday:

source:

See that? There A-Rod’s lawyers are saying they did not concede this. They think 7(A)’s 50/100/lifetime matrix applies.

So who’s wrong here? Did the arbitrator simply dismiss A-Rod’s objections to which discipline provision applies and state that everyone agrees, or are A-Rod’s lawyers misrepresenting the record and conveniently forget the fact that they conceded the point?

  1. DelawarePhilliesFan - Jan 14, 2014 at 8:38 AM

    They allege he had no basis to find the suspension was justified? Even if that is correct – too bad, that’s the way the bee bumbles. They know this, yet say it in the case anyway. I don’t know who is right, but I tend not to give much credibility to those acting out of spite.

    • allsport1980 - Jan 15, 2014 at 10:21 AM

      So MLB and Bosch were acting in good faith here? Everyone in this scenario was acting out of spite for the other.

      • DelawarePhilliesFan - Jan 15, 2014 at 10:57 AM

        I said I don’t know who is right, but I am not going to give any credibility to what is in this motion. IMO, it is legalese for “The Arbitrator was a meany poopie head”

  2. rdillon99 - Jan 14, 2014 at 8:44 AM

    Weird. It is difficult to imagine that ARod’s lawyers would have conceded the point at the Arbitration since the interpretation of that provision ought to have been the entire essence of the dispute. On the other hand, it is also difficult to imagine that the arbitrator would have stated in his Decision that ARod’s lawyers conceded the point if in fact they had not.

    • apkyletexas - Jan 14, 2014 at 8:59 AM

      They might have conceded the point if their only alternative was a lifetime ban.

      But, it looks like they have an actual issue for the federal court to think about.

    • moogro - Jan 14, 2014 at 5:25 PM

      There is a problem here. (Other than Craig not converting text pictures into editable text.) There is no way one could argue that steroids are taken one kind of drug at at time, one dose at a time. Their use, by definition, fall into “continued and prolonged use and possession.” That is how all the other Biogenesis clients used them, and to give them all 50 game suspensions is to ignore this fact. Why is Rodriguez’s use given a historical investigation (use over time) when those people aren’t? They would have to fall under 7G rule also, and require a large, historical investigation. Instead, they were treated differently as a group under the 7A rule, as if they failed a drug test, which they did not. This also opens up the problem of a multiple different failure during a single drug test. If it’s amphetamines and HGH in the test, is that now 100 games, or just one penalty for 50 games? If it’s steroids and HGH, is that different? And why?

      • allsport1980 - Jan 15, 2014 at 10:26 AM

        Good points. I do think MLB gets away with it because the other players all agreed to their bans while AROD declined the offer and decided to fight it. Now did AROD decline MLB’s offers because he was being treated differently and with a bigger spotlight than the others? Why did Braun specifically get 65 games and AROD 211 games?

        Both players have a history of use (failed tests) yet one player gets 65 games and MLB doesn’t release any of the evidence against him, while doing the complete opposite to AROD before his suspension was ever announced. While AROD most likely deserves a suspension the arbitrator’s ruling is odd because he simply overlooks the areas where MLB violated their own agreement to pursue one player. If it is wrong for AROD to intimidate witnesses and buy evidence than how is ok for MLB to do it?

  3. lirianod - Jan 14, 2014 at 8:44 AM

    If ARod’s lawyers that 50/100/lifetime matrix applies, are they now conceding that ARod did in fact used PEDs?

    • Craig Calcaterra - Jan 14, 2014 at 8:54 AM

      Doesn’t work that way. Legal arguments are often made “in the alternative.” Meaning one can say: “A-Rod didn’t do anything wrong, but even if he did, he was only deserving of 50 games.”

      The reason for this is so that you don’t have arguments go back and forth forever:

      A-Rod’s laywer: “A-Rod did nothing wrong!”

      Judge, two weeks later: “Yes, he did.”

      A-Rod’s lawyer, two weeks later: “Well, OK, but he’s only deserving of 50 games.”

      It allows the judge to know what the arguments will be given any set of circumstances and is not viewed as an admission or anything.

      • deep64blue - Jan 14, 2014 at 9:15 AM

        Craig – is this kind of argument the type of thing that might allow a Judge to overturn an Arbitrator’s award? I know Judges are reluctant to do so but there must be some relation between the award and the rules governing it?

        Thanks!

      • mogogo1 - Jan 14, 2014 at 1:53 PM

        Unless this gets fast-tracked through the courts, it’ll likely be a moot point as A-Rod will already have missed time waiting on things to be resolved. Assuming a court will even hear his arguments (not at all a certainty regardless what arguments he has given how the law treats arbitration) they most certainly would not issue a sweeping ruling in his favor saying he could immediately play and all suspensions are forever gone. He may be hoping the court would rule that he was clearly a first time offender so X number of games is all he could get, but that is also unlikely. Most likely, a court would cite a problem with the arbiter’s ruling and then send it back to arbitration. But that would probably mean starting from scratch with a brand-new arbiter. Bottom line is there’s no quickie fix that gets A-Rod his paycheck back tomorrow.

  4. raysfan1 - Jan 14, 2014 at 8:52 AM

    Interesting. Recordings of the hearings should be easily able to disprove one or the other’s statements…but I don’t think one can successfully appeal an arbitrator’s ruling based on the decision being incorrect. I assume that Rodriguez’ lawyers are trying to use this as part of an allegation that the arbitrator was biased? Good luck proving that.

    • rdillon99 - Jan 14, 2014 at 9:03 AM

      Without having read a single word of the law suit, I would guess that ARod’s lawyers will argue that the Arbitrator’s interpretation of the punishment provisions was more than merely incorrect. They will argue that the Arbitrator’s interpretation of that provision is entirely unsupportable by the language used in that provision and thus his decision is “arbitrary”. If a court accepted that argument, it could possibly overturn the Arbitrator’s decision.

      • myopinionisrighterthanyours - Jan 14, 2014 at 10:13 AM

        My understanding is it doesn’t work this way. The only way a court can overturn is based on fraud or corruption. Fraud doesn’t work because even if you disagree with the interpretation, it is an interpretation none the less. I think even Craig can see how he got from A to B to C, even though he (and others) think it should have stopped at A. So, unless they can prove Horowitz was being paid under the table, he has no chance of playing next year.

      • rdillon99 - Jan 14, 2014 at 10:18 AM

        The standard of review of an arbitration award is very high, but it is not so high as to require proof of fraud or corruption.

  5. schuch10 - Jan 14, 2014 at 9:18 AM

    Poor ARod is just getting the shaft from every person. First, it is the Yankees. Next, it is MLB. Now, it is an arbitration panel. Then, it will be the appeals decision. Then it will be his garbage civil suit. Finally, . . . there will be no finally as this will continue forever.

    I like how ARod is still saying “I have never used performance enhancing drugs.” Hahahahahaha.

    The general theme of HBT articles: MLB acting improperly, arguments to keep non-PED players out of the Hall of Fame, and mocking players who say they are in the best shape of their life.

    • raysfan1 - Jan 14, 2014 at 9:59 AM

      Again reading comprehension must be hard. What part of this article is defending Rodriguez? It is saying there is a discrepancy between what the arbitrator wrote in his findings and what Rodriguez’ lawyers wrote in filing their lawsuit. It does not even say which right–after all, that isn’t really possible to know for any of us since the hearings were closed.

      • bigharold - Jan 14, 2014 at 5:55 PM

        Raysfan1, .. never wrestle with a pig, .. you both get dirty but the pig likes it.

      • raysfan1 - Jan 14, 2014 at 10:50 PM

        Good line, think I’ll have to “borrow” it!

    • sabathiawouldbegoodattheeighthtoo - Jan 14, 2014 at 10:02 AM

      I could imagine, if the MLBPA conceded this point on ARod’s behalf, but without his explicit consent, that could be why the MLBPA is a co-defendant in this suit.

      • allsport1980 - Jan 15, 2014 at 10:29 AM

        AROD did relinquish MLBPA from representing him and this could ultimately be what his lawyers will say. The MLBPA conceded this point AROD disagreed and brought in his own legal team therefore he never conceded that point. Not sure how that logic will fly in federal court but it could give them enough wiggle room to get a hearing on it.

  6. tedwmoore - Jan 14, 2014 at 9:25 AM

    Didn’t Michael Weiner issue a statement endorsing MLB’s use of the “just cause” provision, saying something to the effect of, the 50/100/lifetime framework was not intended to cover situations like A-Rod’s?

    No reason to expect this was relevant to the arbitrator’s decision, but from an outsider’s perspective this has all been confusing and opaque, and no one ever seems to know the whole truth, or at least no one is willing to provide us with the whole truth, creating a public sphere in which misinformation and speculation reign. It is exhausting trying to keep pace with the case, and frustrating to keep at least some version of the facts in order.

    • clydeserra - Jan 14, 2014 at 10:02 AM

      if we assume the rules of evidence are the same in an arbitration as they are in a trial, the concession would have to have been made on the record in the proceeding. Since the MLBPAA is not a party to the discipline of Rodriguez, it wold seem that either a) Rodriguez’s team conceded and forgot, or b) they didn’t concede and the arbiter is wrong.

  7. sdelmonte - Jan 14, 2014 at 9:38 AM

    The union should never have conceded the point. That continues to bother me. And even if A-Rod burns his bridges with the union, it still is the obligation of the union to stand up for the rights of every member, even the jerks.

    • gerryb323 - Jan 14, 2014 at 10:03 AM

      Yes, and this is why the union needs to now fire the arbitrator. I think the union agreed that the punishment didn’t necessarily need to fit in the 50/100/life construct if there were extenuating circumstances (like evidence/witness tampering, etc.) and thereby falling under 7(G). However, I don’t think they envisioned the arbitrator basically deciding to stack punishments and essentially back into a justification for a full season penalty by cobbling together some form of the punishments from 7(A).

      The union figured: violation under 7(A) get the punishments for 7(A), violation under 7(G), get the punishments for 7(G) (i.e. whatever Bud decides). Here, we have violation under 7(G), lets add up a bunch of the 7(A) punishments cuz it sounds good.

      • allsport1980 - Jan 15, 2014 at 10:31 AM

        This is also why MLBPA is being sued along with MLB. AROD’s basically fired the Players Union from his representation before the hearing.

  8. anxovies - Jan 14, 2014 at 9:43 AM

    I think that ARod conceded that 7(a) applied as to discipline for determining whether he was a first, second or third offender. I don’t think that they foresay Horowitz cobbling together penalties from 7(a) and 7(g) as he did. I suspect that the argument will be that he went outside the letter and intent of the Joint Agreement. The argument has some merit so his appeal could be at least partly successful.

  9. 4d3fect - Jan 14, 2014 at 9:47 AM

    So now Alex “frowny face” Rodriguez pics seem to be popping up a lot lately around here

  10. jbriggs81 - Jan 14, 2014 at 9:56 AM

    Craig: Just out of curiosity, how come you never give the benefit of the doubt to Horowitz?

    Horowitz seems like a reputable arbitrator who heard all the testimony and listened to all sides in a fair manner. He didn’t rule in Arod’s favor, but I don’t really see a basis to doubt his conclusion that Arod’s counsel conceded the point. As an attorney, you should know that not every Judge will always rule in your favor.

    On the other hand, I don’t know how you could ever give Arod or his counsel the benefit of the doubt. They have repeatedly misrepresented things to the public (and I would assume in Arbitration as well) throughout this entire episode.

    • raysfan1 - Jan 14, 2014 at 10:19 AM

      He’s not giving either the benefit of the doubt here. He’s saying what the two are each saying does not match what the other said.

      • jbriggs81 - Jan 14, 2014 at 10:31 AM

        I was wondering why he wouldn’t give Horowitz the benefit of the doubt. As I previously stated, Horowitz has a sterling reputation, while Arod and his team have consistently misrepresented themselves.

      • raysfan1 - Jan 14, 2014 at 10:57 PM

        Okay. I guess he’s just trying to be fair since the actual answer is currently unknowable. Since the hearing was undoubtedly recorded, I’m sure the answer will come. However, if I had to stake my life to someone’s integrity, I’d definitely pick Horowitz over anyone in Rodriguez’ camp.

  11. chip56 - Jan 14, 2014 at 9:59 AM

    My guess is that since Alex and his team were already setting the stage for this hearing during the arbitration, that they weren’t really following the salient points of the case and were, instead, just waiting for the opportunity to have Alex storm out for PR purposes.

    What’s more, it’s the word of Alex and Joe Tacopina against Horowitz, the Union and the league in this issue so my guess is that a judge will side with the latter three as, certainly in the union’s cases, they wouldn’t have signed off on this if Alex had not agreed with the above.

    • clydeserra - Jan 14, 2014 at 10:08 AM

      No, no, no, no. That is not how people operate, there is no analogy to rope-a-dope. As a lawyer representing your client, the attorneys should fight every piece. Not following the trial is nonsense.

      • chip56 - Jan 14, 2014 at 10:16 AM

        What they should do and what they did do are totally different things. Do you disagree that Alex’s walkout was staged?

  12. sabathiawouldbegoodattheeighthtoo - Jan 14, 2014 at 10:07 AM

    I have not read the case, but as Craig pointed out earlier, Horowitz logic in doling out the punishment seemed a bit fuzzy. If this were to be re-examined, wouldn’t it be entirely possible that a new arbitrator could come to a clearer but more damaging conclusion, considering ARod’s multiple offenses triggering the 50/100/lifetime bans all at once? Wouldn’t that be a kick in the pants for all of ARod’s money spent?

    • scoutsaysweitersisabust - Jan 14, 2014 at 11:31 AM

      Absolutely. And as stated, 50 games makes sense. Lifetime ban makes sense. I wonder if the arbiter decided “ah screw it, let’s cut it somewhere in the middle and make it a year.”

  13. lpd1964 - Jan 14, 2014 at 10:11 AM

    Arod went on Mike Francesa’s show and was asked did you ever do PEDS ? Arod replied, Never. I thought Arod conceded many years ago he did, so which is it??

    • NatsLady - Jan 14, 2014 at 11:06 AM

      He clarified that he meant in the period since (i.e., after he left Texas). That is, “I have never used PEDs since that time I was caught using them.”

      • sabathiawouldbegoodattheeighthtoo - Jan 14, 2014 at 11:49 AM

        Ah, the Andy Pettitte defense.

      • allsport1980 - Jan 15, 2014 at 10:32 AM

        Ah the defense of every know PED user who was caught since the dawn of time.

  14. lwdj905 - Jan 14, 2014 at 10:41 AM

    I’m guessing the appeal will be based on Arod continuing the strategy of pointing the finger at everyone with regards to no evidence of his failing a test. Regardless of his prior admission to having taken a substance, he has never stated that on the record in a legal proceeding. Arod can continue to speak on every talk show in America, but until he is willing to take the stand I tend to favor the verdict reached by the arbitrator. By including MLBPA he is entering that classic gambit of ineffectual counsel since they are considered to be his representatives during this arbitration. He used his own legal team, negated MLBPA involvement, and publicly stated he was being “railroaded by the system”. No one force him to join the MLB, MLBPA, Yankees/Rangers/Mariners and abide by the same rules hundreds of other players respect and try to abide [yes there are rule breaker, but they also willingly accepted the rules with the paycheck!]

    • allsport1980 - Jan 15, 2014 at 10:34 AM

      Bud Selig hasn’t taken the stand on any of this either and I would like to hear him speak on the record and under oath instead of all the talk shows he has been on. Guy can do Letterman and 60 Minutes but declined to speak during arbitration. That doesn’t look good on Bud.

  15. mtr75 - Jan 14, 2014 at 10:52 AM

    7(G) essentially makes the 50/100/lifetime rule irrelevant if Bud can just use that to discipline players as he sees fit. I have no doubt A-Roid did what he was accused of, but it’s a complete sham that he wasn’t treated like any other player, which he clearly was not.

  16. NatsLady - Jan 14, 2014 at 11:18 AM

    One feels (I feel) that the union looked at Rodriguez and the evidence against him, plus his history, and recommended accepting a plea bargain. Basically, “Alex, they have you. If you don’t take a 50-gamer–or a 150-gamer, depending on when/what he was offered–then you risk a season or life-time suspension.” Lawyers do that ALL the time, and, in fact, can be sued if they DON’T tell their client a plea-bargain was on the table. It may be that Weiner himself spoke to Rodriguez.

    Rodriguez didn’t follow their advice. His choice. Everyone advises him now, “Alex, take your suspension, don’t waste your millions on legal fees, stay in shape, do good works, come back in 2015.”

    He’s not going to follow that advice either because that isn’t fighting, and he’s a “fighter.”

  17. scoutsaysweitersisabust - Jan 14, 2014 at 11:30 AM

    I bet that Alex conceded that 7G applied to the additional punishment for obstruction, but the base suspension should be under 7A for 50 games.

    • peymax1693 - Jan 14, 2014 at 12:34 PM

      I think this is the most reasonable interpretation of the inconsistency between the Arbitrator’s findings and A-Rod’s claims in the complaint. A-Rod’s attorneys thought they were stipulating that Sec. 7.G.2. applied to the obstruction allegation while Horowitz believed that they were stipulating that Sec. 7.G.2. applied to all the allegations. The only way to find out what happened is to listen to the audio recordings.

  18. fatelvis77 - Jan 14, 2014 at 11:55 AM

    In the 2014 season some players will be caught using PED’s. Other users will get away with it. This is never going to stop. AROD left an electronic trail ten miles long. It appeared from the evidence that he was using in 2010, 2011 and 2012. Suggesting that this merits the “first time getting caught” standard of 50 games is ridiculous. He is, at least according to the evidence, a serial cheater. A one year suspension is more than merited. If he really turned down a 50 game suspension he could be the stupidest rich man in America.

    • allsport1980 - Jan 15, 2014 at 10:58 AM

      I don’t think he ever turned down a 50 games suspension because MLB never had any intention of getting him for 50 games. MLB wanted to make a statement bigger than 50 games and now they have.

  19. cackalackyank - Jan 14, 2014 at 1:07 PM

    I do not see how A-rod’s team would have agreed that 7G applies. It would basically be an admission that he did in fact use multiple substances multiple times.

  20. granadafan - Jan 14, 2014 at 3:57 PM

    By saying ARoid should have received 50 games under the JDA, they have just admitted that he took PEDs. Yet, his lawyer is all over the airwaves saying that ARoid never failed a test, is innocent, Conte is not credible, blah blah blah.

    • allsport1980 - Jan 15, 2014 at 10:59 AM

      By Conte do you mean Bosch…blah blah blah

  21. timaug - Jan 14, 2014 at 10:12 PM

    I can’t believe a lawyer would misrepresent anything ?
    Especially since a-rod has been so honest.
    Oh brother.

  22. allsport1980 - Jan 15, 2014 at 11:00 AM

    To be fair MLB did have investigations sleeping with witnesses and buying evidence along with stealing evidence so it isn’t like either side is being wholly honest here. This whole deal looks bad all the way around.

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