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His “gravest sin?” Hogwash. If A-Rod wants to reverse his suspension he HAS to sue the Union

Jan 14, 2014, 12:26 PM EST

lawsuit gavel

More going way-too-far from baseball writers who are not conversant with labor law. Mike Vaccaro of the New York Post saying that A-Rod is awful — the headline says he committed “his gravest sin” —  in suing the MLBPA yesterday. In the article he says A-Rod “slanders a dead man” in mentioning Michael Weiner in his complaint, which is the most extreme version yet of the fallacy I discussed this morning.

Let’s inject some actual information into this, shall we? David Ziff, who is a lecturer at the University of Washington School of Law, alerts me to legal precedent which not only makes A-Rod’s suing of the MLBPA not a “grave sin,” but makes it absolutely essential if he is to advance his case.

A-Rod’s suit comes pursuant to Section 301 of the Labor Management Relations Act or the “LMRA.” Here is what the law has to say about suing your union in such cases:

When union members sue their employer for breach of contract under section 301 of the LMRA, they must also state a prerequisite claim of breach of their union’s duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 186-87 (1967); Thomas v. United Parcel Serv., Inc., 890 F.2d 909, 914-16 (7th Cir. 1989). This is because ordinarily, union members must first use the grievance procedures specified in the CBA rather than directly sue the employer; only when the union has breached its duty to fairly represent the union members in that grievance process may the union members bring a claim against their employer. See, e.g., DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163-64 (1983).

It’s not a choice by A-Rod, and certainly not a “sin.” His effort to sue MLB and overturn his arbitration award REQUIRES that he sue the union as well. If not, he has no claim at all.

Perhaps your response to this is “well, he shouldn’t be suing.” But if it is, at least admit that you’re angry at A-Rod for fully exercising his rights, not the manner in which he is doing so. Because to do it any other way would constitute legal malpractice.

  1. El Bravo - Jan 14, 2014 at 12:34 PM

    I gotta say, it feels like ARod is not on that island alone after all. My homie Craig paddled over there too ;)

    • cohnjusack - Jan 14, 2014 at 12:39 PM

      I don’t know, didn’t Craig spend most of his career in business litigation? I think it has far less to do with defending A-Rod and far more to do with being one of the few sportswriters who has some knowledge of the nuance of these sorts of agreements.

      • El Bravo - Jan 14, 2014 at 12:42 PM

        I know, hence the wink. Sometimes playing the devil’s advocate gets Craig some flak, but it is important to do so. I’m just ready for spring training…oh snap speaking of, i gotta buy some tix.

      • paperlions - Jan 14, 2014 at 3:16 PM

        If only sports writers had one of them telephone devices and some ability to use them to contact someone with actual knowledge about issues so that they could write columns and opinions that are actually based on facts and reality. Alas, we know beyond a shadow of a doubt that such resources are not available to sports writers, otherwise over the last few decades during which steroid and amphetamine usage has been common and commonly known, they would have contacted experts in order to learn enough to write about them from an educated position.

      • apkyletexas - Jan 14, 2014 at 3:48 PM

        @paperlions – either that, or all the sports writers were too busy boozing and/or smoking pot and/or recovering from hangovers and/or avoiding their ex-wives’ lawyers to be bothered with annoying stuff like “research”.

        Besides – doesn’t most sports writing “research” happen in a bar? It always plays out that way in the movies.

      • Reflex - Jan 15, 2014 at 6:20 PM

        @apkyletexas – Your comment would carry more weight if you weren’t the guy who thinks the Mariner’s messed up Griffey by calling him up at 19 and that Maddux and Thomas were just above average compilers and not sure fire HOFers…

    • fanofevilempire - Jan 14, 2014 at 1:21 PM

      I like when Bill Madden compared A-Rod to Notorious Boston gangster Whitey Bulger.

    • zacksdad - Jan 14, 2014 at 2:14 PM

      Craig is in love with PED users. Is he still defending Braun as never using? With Braun’s arbitration he defended it, now with AROD MLB over stepped their authority.

      • byjiminy - Jan 14, 2014 at 2:36 PM

        Craig is in love with PED users? So if I don’t want the NSA reading my email it means I’m in love with terrorists?

        Look, I don’t agree with everything Craig says either, but he’s made it abundantly clear, you might even say redundantly clear, that his issue with the process is whether due process was followed. Which is really, really important, even when punishing violators.

        If you want people to have any confidence in the system, if you want buy in from the union, if you want to make sure innocent people don’t get railroaded in the future, or guilty people don’t get their punishment tripled by grandstanding hypocrites, the answer is simple: just follow the damn rules. Everyone.

        Craig’s point is not that he loves R-Rod. Really. It’s that if you have an elaborately negotiated process for punishing PED users, that it took literally decades for all parties to agree to, it might not be a great idea to defy the rules and triple a penalty, just…because. Or you permanently alter the relationship between all parties, forever.

        His point is not that 150 games is too much or too little for A-Rod to endure. It’s that the rationale for that number cannot be found anywhere in the governing labor agreement, and it sets a dangerous precedent.

        I’m sick of him carping on this too, and find he overreaches on occasion, and all told would much rather be reading about actual baseball…but he’s also totally convinced me of his main point. And it’s a point precious few others are making, so it’s hard to argue it’s not necessary to take a strong and voluble stand. Especially if people are still out their claiming that criticizing the MLB arguments constitutes being “in love with PED users”!

        Sheesh! Now you’ve convinced him he hasn’t been hammering this point hard enough!!! And you’ve almost convinced me! Aaarghhh!

  2. hbegley6672 - Jan 14, 2014 at 12:37 PM

    You are 1000% correct… However, The issue is that he shouldn’t be suing anybody. He lost. Period. “Respect the process” is the BS he espoused. And now? He doesn’t get a pass for suing the PA because “he has to”… NO HE DOES NOT! Suing when you are in the wrong does make him in the WRONG!

    • jwbiii - Jan 14, 2014 at 12:58 PM

      By that reasoning, we should do away with appeals courts and supreme courts. Is that your opinion?

      • cohnjusack - Jan 14, 2014 at 1:30 PM

        hbegley is exactly right! When has a case ever been overturned by a higher court upon further review? I mean, I can’t think of a single example. Our system is clearly infallible and beyond question! That goes double with arbitration, which is known as an even fairer, less questionable way of dispute settlement.

      • jtorrey13 - Jan 14, 2014 at 1:48 PM

        Howard Johnson is right!

        (Your login names me nothing to me. I will name you what I want. From now on, El Bravo is “Pinto.” Why Pinto? WHY NOT?)

    • anxovies - Jan 14, 2014 at 2:06 PM

      A collective bargaining agreement is like any other contract, it spells out the rights and duties of the parties including, in this case, the kind of conduct that justifies punishment and the type of punishment. Craig’s blog yesterday talked about how the penalties imposed by the arbitrator do not square up with the rules set up by the drug agreement and appear to be more or less made up by the arbitrator to reach the result he wanted. If this is the case then ARod has every right to cry foul since the punishment imposed doesn’t fit the written procedure in the contract. It’s like if you buy something on credit and miss a payment and the financing company charges you a late fee that is in excess of the penalties spelled out in the loan agreement.

      • davidpom50 - Jan 14, 2014 at 2:08 PM

        However, lots of other legal bloggers had no trouble following the reasoning. See Baseball Prospectus, for one.

      • zacksdad - Jan 14, 2014 at 2:17 PM

        But Craig defended the arbitrator that changed the rules of the CBA stating the collection process was off. The collector used the current rules in place and got his name ruined in the process. But Craig has a man crush on all cheats and users.

      • Craig Calcaterra - Jan 14, 2014 at 2:33 PM

        Well, you’re wrong for about 50 reasons, but go on believing what you’d like to believe.

      • paperlions - Jan 14, 2014 at 3:19 PM

        Jeez, for his sake, I hope Zack’s mom has custody.

    • byjiminy - Jan 14, 2014 at 2:41 PM

      Wow, I don’t recall ever taking the losing side of a 6-26 argument. But I agree with begley! He does not “have to” sue the PA!

      It’s true that if he wants to sue the one, he has to sue the other. But he doesn’t HAVE to do either.

      That’s like saying, “if I want to escape the scene of my mass murder without leaving any witnesses, I have to kill the little kid who saw me.” That is true! If you want to do the first, you have to do the second too. But you don’t have to do either.

      • slowclyde86 - Jan 14, 2014 at 3:07 PM

        This is the post of the day. Cogently destroys Craig’s entire post.

      • jwbiii - Jan 14, 2014 at 4:37 PM

        I agree with you completely, byjiminy. Filing a legal appeal is exactly the same as killing a witness.

  3. 1943mrmojorisin1971 - Jan 14, 2014 at 12:38 PM

    But…but….A-Rod is a monster. To hell with your legal mumbo-jumbo.

  4. domvjr - Jan 14, 2014 at 12:43 PM

    Good job, Craig! Why let facts get in the way of specious arguments by those who really don’t like the player who shall remain nameless!

  5. stoutfiles - Jan 14, 2014 at 12:48 PM

    I would be happy if A-Rod won. I don’t like Alex, nor do I think he is innocent (far from it), but they came up with these rules for suspending players and then they completely ignore them. Alex may be a dirty cheater, but he played the game as they saw fit (you aren’t a cheater unless we catch you in a drug test). You can’t just change the rules on the fly because you don’t like the guy that’s been finding loopholes.

    • davidpom50 - Jan 14, 2014 at 12:54 PM

      Actually, the JDA is pretty clear that a positive test is absolutely not the only reason for suspension. Players can be suspended for use or possession outside of the testing program.

      • bsbiz - Jan 14, 2014 at 1:19 PM

        But the JDA also has specific penalties specifically outlined. None of this 162 or 211 games crap.

      • davidpom50 - Jan 14, 2014 at 1:26 PM

        1. The penalty was determined under the “Just Cause” clause, which is separate and distinct from 50/100/lifetime structure. 2. Despite that, the same structure actually WAS used by the arbitrator. The 162 games consists of 50 games each for a first violation of three different substances, plus 12 games for attempting to impede the investigation. I have not seen how MLB came up with their 211 games.

      • lirianod - Jan 14, 2014 at 1:35 PM

        @ Davidpom50 By that logic a first time offender can get a lifetime ban if stacking is permitted.

      • davidpom50 - Jan 14, 2014 at 1:40 PM

        Yep. That’s the most likely reason that A-Rod’s team would agree to use the other section of the JDA for punishment – if they didn’t, they risked lifetime ban, if the arbitrator chose to read it a certain way.

    • byjiminy - Jan 14, 2014 at 2:54 PM

      I would not be that upset if A-Rod won either. The argument that he gets three 50 game suspensions because he took three different drugs makes no sense.

      Almost every bust for PEDs involves multiple drugs! This is the first and only time the argument has been made that they should be treated as separate events.

      The obstruction charges were applied inconsistently as well. Melky Cabrera set up a fake website to try to mislead the investigators! That’s not obstruction? He only got 50 games.

      I’m not saying what A-Rod did isn’t worse. I’m agreeing with Craig that the rationale for his punishment is not consistent with any other penalty.

      Rumors imply that Braun and others accepted their negotiated penalties because if they fought them, the penalties would be much harsher. That is chilling. The penalty you get should be defined by what you did. And it sounds like the biggest penalties are now reserved not for drug violations, but for defying the authorities! Be a bulldog about enforcing the rules. Not about crushing people who disrespect you. That’s just creepy.

      • moogro - Jan 14, 2014 at 5:49 PM

        byjiminy we have a winner! Took a lot of reading today to get to your comment. Move to the front.

      • doctornature - Jan 14, 2014 at 8:53 PM

        You are conveniently overlooking his various nefarious activities such as hiring Bosch a lawyer for 50,000…which was returned because Bosch rejected it…trying to buy all the evidence against him so MLB couldn’t get it….trying to bribe Bosch into leaving for Columbia….someone in his posse sending Bosch’s girlfriend a death threat against Bosch….etc.

        Others who got only 50 didn’t fight the mountain of evidence, and stepped quietly into that goodnight. Hence the leniency. Arod’s actions were criminal, he fought them tooth and nail, impeded the investigation, hence the hammer coming down on his sorry a$$.

        He is extremely lucky he didn’t get the lifetime ban, which was totally justified by his career-long use of PEDs, his massive lies and failing even to testify at his own arbitration hearing. His team has never questioned the truth of the evidence…only the manner in which it was collected (which is what AROD was trying to do himself), and the reputation of Bosch.

        They never denied the texts or phone records were legit…just that they were un-ordered and some other crap…but not their existence is a fact, his hearing was his chance to take the stand and tell his version of the truth, but he stormed out rather than testify under oath.

        He is BEYOND guilty, and deserved MORE than he got in the way of punishment. He has been cheating baseball since 1995, and anybody claiming he is innocent is living in a fantasy world. He inflicted this upon himself, and continues to blame everybody else in a ‘what have I got to lose’ manner which is just bringing more facts of his guilt into the open every day.

        They shoot horses, and the Fraud is a Horse’s A$$. Baseball can only hope he takes that way out HIMSelF. A perfect ending for ‘poor Arod’…the innocent hero who was railroaded by 1 man’s vendetta.

        He can preach in hell to all the other idiots down there, and maybe find a following. Anybody who sympathizes with this tool is crazy IMO.

      • byjiminy - Jan 15, 2014 at 12:32 PM

        Doctornature, I agree with everything you say, and am thumbs upping you.

        Just to reiterate, “I’m not saying what A-Rod did isn’t worse. I’m agreeing with Craig that the rationale for his punishment is not consistent.”

        If they had used your arguments as a rationale for a longer ban than Braun, that might have made some sense. Byt they did not.

        According to their published reasoning, only 12 games of A-Rod’s suspension were for obstruction. They say that the 150 were for taking three different drugs.

        I still think that makes no sense.

  6. deathmonkey41 - Jan 14, 2014 at 12:50 PM

    When A-Rod isn’t playing baseball, he grows a curly mustache and ties damsels to train tracks.

    • peymax1693 - Jan 14, 2014 at 1:58 PM

      and he kicks puppies and steals candy from children.

      • paperlions - Jan 14, 2014 at 3:22 PM

        Those kids are too fat anyway, but I’ll kill him myself for the puppy kicking thing.

  7. chacochicken - Jan 14, 2014 at 12:50 PM

    It would have probably worked out better if they just gaslighted Arod until he killed himself.

    http://en.wikipedia.org/wiki/Gaslighting

  8. davidpom50 - Jan 14, 2014 at 12:51 PM

    Once again, Craig goes WAY too far in assuming thoughts and feelings for his readers:

    “Perhaps your response to this is “well, he shouldn’t be suing.” But if it is, at least admit that you’re angry at A-Rod for fully exercising his rights, not the manner in which he is doing so. Because to do it any other way would constitute legal malpractice.”

    Nope. Not at all. I think A-Rod shouldn’t be suing because, from everything I’ve read from legal analysts, HE DOESN’T HAVE A CASE. Filing frivolous lawsuits is absolutely not the same thing as fully exercising his rights.

    Note: This doesn’t mean I agree with a damn word Vaccaro wrote. The fact that he’s suing the union doesn’t make this any better or any worse. It’s just his lawyers doing their job. I’m just annoyed that Craig likes to assume he knows the thoughts and motivations of all his readers. It’s “If you think Braun is guilty, at least admit you don’t care about testing” all over again.

    • Craig Calcaterra - Jan 14, 2014 at 1:12 PM

      Having a small likelihood of success is not the same thing as a “frivolous lawsuit.” Indeed, a “frivolous lawsuit” is defined in the law. This is not that.

      People who get the death penalty rarely have their sentence overturned. It is not frivolous for them to appeal.

      People who sue for defamation lose far more often than not, but such suits — as long as based on fact — are not frivolous.

      How about: “if you think A-Rod’s suit is motivated by bridge-burning and hatred, you don’t understand the law.”

      • davidpom50 - Jan 14, 2014 at 1:22 PM

        Well, just off the top of my head (and bearing in mind that I’m not a lawyer), wouldn’t this be considered frivolous if, in fact, the arbitrator’s report is correct as to A-Rod’s legal team accepting the use of section 7.G.2 rather than 7.A, since one of the main claims of this suit is that it should’ve been determined under 7.A?

      • davidpom50 - Jan 14, 2014 at 1:31 PM

        Oh, and one last thing: I think the suit is motivated not by “bridge burning and hatred,” but by the same overwhelming competitive drive that helped turn A-Rod into one of the best baseball players of all time. He just refuses to give up, even though he has been soundly defeated. Still think the lawsuit is probably frivolous, based on my reasoning above.

      • amhendrick - Jan 14, 2014 at 1:50 PM

        Sure, ‘frivolous’ has a specific meaning in this context. But a lawyer should also have advised ARod that his chances of winning the federal case are very slim, and that in pursing that case he’d have to name the union as a defendant which would likely tick off the union and alienate many other players.

  9. sleepyirv - Jan 14, 2014 at 12:52 PM

    About the legal malpractice charge- I’m pretty sure these sportswriters didn’t even graduate law school, much less passed the bar.

  10. neelymessier - Jan 14, 2014 at 1:03 PM

    right. I have heard many lawyers say that overturning an arbitration ruling happens almost never. But I’m sure it would be personal financial malpractice if his lawyers didn’t milk him for more millions in the quixotic quest.

    • neelymessier - Jan 14, 2014 at 1:19 PM

      Craig I would appeal the death penalty. That is a lame analogy period. He also lost trying to get the auditors report redacted or sealed. When you are going to die, you fire all guns. When your odds of prevailing in a civil case are nil, and the suspension is already costing him tens of millions, one might get the notion that appealing is throwing good money after bad. If he loses the case it is status quo, except his lawyers have earned millions more. Sometimes it is wiser to count your losses and go home.

  11. cofran2004 - Jan 14, 2014 at 1:25 PM

    Craig… I find the A-rod stuff interesting. But please… post something else. At one point on the HBT home page I saw three different pictures of A-Rod looking dramatically past the camera. Come on… find something… anything else to post about. If only so I don’t have to look at the A-Rod Ghidorah again…

    • davidpom50 - Jan 14, 2014 at 1:27 PM

      …And I find myself rapidly switching gears to defending Craig… He’s stated a number of times in his posts that he would love for this story to go away. At the same time, it’s January, the hot stove is currently slow, and there’s just not a whole hell of a lot of other baseball news to talk about.

      • cofran2004 - Jan 14, 2014 at 1:31 PM

        I know, and I thought about that as soon as I hit post. And I agree with almost everything craig has said about the A-Rod stuff. But how does Tanaka’s sister feel about his choices of teams? Maybe Ian Kinsler’s dog is sick. Hell, I don’t know…. anything… I’m just sick of seeing A-Rod’s face on every headline xD

    • dcarroll73 - Jan 14, 2014 at 8:16 PM

      I suggest a revised policy that Craig should implement at once. To deal with ‘slow news hot stove’ issues we still have all the A-rod stories, but to make HBT a much more attractive place he will now use the beloved photo of Ms. Cook for all these posts (it does relate to A-rod’s brain on drugs.)

      • cofran2004 - Jan 16, 2014 at 7:51 AM

        haaaa…. this.

  12. landscapesandlegacies - Jan 14, 2014 at 3:00 PM

    A tweet!

    Mike Vaccaro ‏@MikeVacc 18h
    Quintessential A-Rod: only active player who bothered to attend Michael Weiner’s memorial service 11/24, & today included him in complaint.

    Hmmm … *only* active player to go? Who’s gonna write the book on the complicated ARod?

  13. mjbaseball - Jan 14, 2014 at 4:15 PM

    Craig, I greatly enjoy your posts, but I don’t think A-Rod is actually required to sue the MLBPA in this case. In DelCostello v. Teamsters, 462 US 151, the Supreme Court noted that “it has long been established that an individual employee may bring suit against his employer for breach of a collective-bargaining agreement,” but that generally the “employee is required to first exhaust any grievance or arbitration remedies provided in the collective-bargaining agreement.” A-Rod is an individual employee, and he did exhaust his grievance remedies by pursuing his case through arbitration.

    In a case called Vaca v. Sipes, the Supreme Court recognized that the requirement of remedial exhaustion could be unfair in cases where, in addition to the alleged breach of the CBA by the employer, the union also breached its duty of fair representation. In these cases, called “hybrid” Section 301/breach of duty of fair representation cases, an employee can sue both the union and his employer, regardless of whether he exhausted his grievance remedies. In other words, if an employee was unable to exhaust his grievance remedies because his union breached its duty of fair representation, the exhaustion requirement can be overcome if the employee can successfully plead the hybrid claim. In A-Rod’s case, since he exhausted his grievance remedies, he would not need to make his claim a hybrid, though he certainly can choose to if he wants.

    The case you cite to is one in which the employee was unable to exhaust his grievance remedies because the union opted to stop pursuing his claim. So, in order to survive a motion to dismiss, the employee would need to successfully state a hybrid claim. While the language the Seventh Circuit used is definitely more sweeping than it needs to be, it is important to remember that the case arose in a very different factual setting than A-Rod’s case.

    Also, a minor point is that even in the hybrid case the employee does not need to sue his union for the breach of the duty of fair representation to survive a motion to dismiss. He just needs to plead that the union breached its duty, even if he does not name the union as a defendant.

    • David Ziff - Jan 14, 2014 at 8:44 PM

      Good point mjbaseball. This is by no means my area of expertise, but I think there are two separate policies at issue here. The first is the respect afforded to union internal procedures. The union has a process and that process needs to be followed, hence the “exhaustion” requirement. But there is a separate policy where the CBA includes a term that union/employer arbitration is final and binding. In those instances, even if procedures are exhausted, the finality of the arbitration process deserves separate respect. And I think that’s where the “hybrid” requirement comes from. The courts don’t want to upset the final arbitration decision unless the employee can show that the union somehow failed to adequately represent the employee during the process that led to the arbitration decision.

      There are examples of courts applying this reasoning and the “hybrid” requirement to cases where the employee obtained a final decision through arbitration (or some other form of final adjudicative proceeding). Take a look at Brownlee v. Yellow Freight, 921 F.2d 745, 747 (8th Cir. 1990), or the brief discussion in Chauffeurs, Teamsters & Helpers v. Terry, 494 U.S. 558, 564 (1990).

  14. shzastl - Jan 14, 2014 at 4:46 PM

    “It’s not a choice by A-Rod, and certainly not a ‘sin.’ His effort to sue MLB and overturn his arbitration award REQUIRES that he sue the union as well.”

    That is false. Craig, your block quote from the Seventh Circuit opinion conveniently leaves out the last sentence of that paragraph:

    “The breach-of-fair-representation requirement applies whether OR NOT the plaintiffs name the union as a defendant in their LMRA suit.” (my emphasis).

    In other words, A-Rod technically did not have to sue the MLBPA–he can prove that it breached its duty as part of his claim against MLB without naming MLBPA as a defendant.

  15. djpostl - Jan 14, 2014 at 4:57 PM

    “if he is to advance his case” are the key words.

    He is not required to go on. It’s his right, but it is NOT required. He could be a man for the first time in his life and own up.

  16. President Charles Logan - Jan 14, 2014 at 8:20 PM

    I’m not sure why any of this is relevant seeing how it’s over, he’s lost and stands zero chance of ever playing for the NY Yankees ever again, and most likely for any team in MLB ever again.

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