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November 21, 2013

Analyzing A-Rod's Arbitration Case

Where A-Rod's Representation Went Wrong

by Eugene Freedman

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On Wednesday, Alex Rodriguez reportedly stormed out of his disciplinary hearing and made various pronouncements to the media, most notably during an interview with Mike Francesa on WFAN and the YES Network. Under normal circumstances, we could see this as his true emotional response to the negative ruling he’d just received (that Commissioner Selig would not be required to testify in the case). But because everything we’ve seen thus far from A-Rod and his team has been so orchestrated, I can interpret this only as a well-rehearsed and well-scheduled event like all of the rest.

Over the course of this drama, we’ve read and heard a lot from and about Alex Rodriguez’s legal team. For many of us in the labor relations field, the entire concept of A-Rod having a legal team is anathema to the grievance arbitration process.

In a normal grievance procedure, either the Union or an employee may file a grievance at Step 1, although even when an employee files his own grievance, the Union has the right to be present and argue its position. But once the grievance moves to arbitration, the process is owned exclusively by the Union. This is because arbitration is a contractual right, not a statutory right. The Union is the party to the Collective Bargaining Agreement, and it should control which cases go forward so that individual members cannot create bad law of the contract, undermining the rights of the rest of the bargaining unit.

In A-Rod’s disciplinary case, he has his own legal team. This creates a curious situation in which A-Rod can bring in his own counsel to argue his case and his argument may be in opposition to or significantly different from the position of his Union.

The New York Times reported on why A-Rod may have his own staff of high-priced lawyers representing him as opposed to the MLBPA. The article referenced a letter from A-Rod’s team of lawyers:

In it, Rodriguez’s lawyers notified the players association that they believed the union failed to “fairly represent his interests” regarding Major League Baseball’s investigation of Biogenesis of America…

The letter argued that the players association had missed opportunities to challenge baseball officials’ aggressive investigative tactics; that the union had not strongly enough condemned baseball’s “gratuitous leaks” to the news media; and, most pointedly, that Michael Weiner, the union’s executive director, had publicly compromised Rodriguez’s position in a radio interview when he signaled that Rodriguez should have accepted some type of suspension “based on the evidence we saw.”

Several of us in the legal Twittersphere questioned Weiner’s interview at the time, concluding that it was an admission against interest. There were several other statements by Weiner that were questionable as well, including one early in the investigation in which he seemed to indicate that these cases would not be handled under the use or possession provisions in the Parties’ Joint Drug Agreement, but instead be covered by the just cause disciplinary provisions, which do not have fixed penalties.

The Times article was a bit confused about the process, however:

The four-page letter was addressed to David Prouty, the players association’s general counsel. It aimed to replace the union’s lawyer for a crucial arbitration hearing regarding the suspension.

It was unclear how the union responded, but the letter apparently proved unsuccessful. At the hearing, which began Monday and will continue in mid-October, Prouty served on the arbitration panel as Rodriguez’s representative. The other members of the panel are Robert Manfred, a senior executive in Major League Baseball, and Fredric Horowitz, an independent arbitrator appointed by both sides.

I would disagree. The letter did prove successful. A-Rod’s team is representing him in the hearing alongside the Union. As I referenced in my prior column, the arbitration panel has three members, one from each party plus the union, but only Arbitrator Horowitz will make the decision.

The MLBPA is the exclusive representative of employees on 40-man rosters. This is based upon a National Labor Relations Board certification election. Having been duly certified, Section 9(a) of the National Labor Relations Act states,

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective- bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.

This of course, deals only with presenting grievances to the employer. As I mentioned above, the arbitration process is owned by the Union. In the Rodriguez case, I would imagine that A-Rod’s team of handlers, from lawyers to public relations advisors to whatever other hangers-on he may have, probably suggested that the Union was going to sell him down the river and that he needed personal representation. They then spared no expense in acquiring for him the greatest criminal and sports lawyers the media has ever quoted, with nary a labor lawyer in the bunch.

I also suspect that A-Rod’s team’s threat that the Union was violating its duty of fair representation was really a threat of lawsuit. The Union likely responded, “Sure, you can step in and handle the case, but you will sign a waiver of claims against us if we let you handle this case in this private proceeding on behalf of a client whom we have the exclusive right to represent.” MLBPA realizes that A-Rod’s team hasn’t met a lawsuit it doesn’t want to file, so giving him his team would accomplish two things, if there was a waiver of claims. It would inoculate them in the event of a loss in the case (A-Rod’s team can’t make a claim against the Union for lost wages), and it would protect them from the Union’s membership, which is now more rabidly anti-doping than perhaps even the media.

The problem with A-Rod having hired only criminal, sports, corporate, and other specialized non-labor lawyers is multi-fold, and it is unfolding right before our eyes. Unions and employers have long-term relationships. They treat each other with the necessary comportment of a long-term relationship. Labor relations is about relationships, after all. Unlike every other contract, when a collective bargaining agreement expires, the relationship doesn’t end even if the parties dislike each other and can’t work together. It just means that they have to suffer through the relationship until they can find common ground.

Labor lawyers also treat the arbitrators with respect. They appear before the same arbitrator or arbitrators regularly, and they know that arbitrators, although they’re independent contractors, have relationships with each other, which means that bad reputations precede bad actors. If you’ve worked with an arbitrator for years and know that you will for years to come, you’re not going to engage in outlandish theatrics that might play in television dramas or the media circus “trial of the century.” You’re also going to treat the other party with respect, because the relationship will last longer than the one case.

On the other hand, if you’re a hired gun who has never handled a labor arbitration and likely never will again, you don’t have to worry about how over-the-top you are toward the other side, much less the arbitrator.

A-Rod calling the arbitration “a farce” and disparaging the arbitrator in public is a tactic his team has concocted in order to get out in front of a bad decision. It screams of a public relations solution to a labor relations issue. If MLB’s case is made on the credibility of felons and liars, undermine their credibility with the arbitrator, not the arbitrator’s credibility with the public. Worse yet, if you’re changing your strategy at this point to one of attacking the process, who’s to say A-Rod won’t sue you for malpractice when the case doesn’t work out in his favor? After all, he’s threatened or sued everyone else. Further, attacking the process appears to be a desperate act, rather than one built on the confidence professed during the early media blitz by A-Rod’s legal team.

And for those who think this is just an elaborate scheme to declare the process unfair now so A-Rod can challenge the ruling once it’s been issued, I wouldn’t expect that to go anywhere either, although it would lead to a lot more legal fees. Courts grant great deference to labor arbitration and arbitrators under what’s referred to as the Steelworkers Trilogy, a series of cases issued by the Supreme Court in 1960. One of those cases is also likely the basis for dismissing A-Rod’s case against MLB—this investigation and matters related to the discipline are covered by the CBA, and therefore subject to the grievance arbitration process rather than private suit.

All told, I think the result in the arbitration was likely to be the same regardless of who represented A-Rod, the Union or his team. MLB must prove its case on each charge by a preponderance of the evidence and also prove that its penalty is reasonable and appropriate. The evidence is what it is. A-Rod is getting a more public version of the private hearing he was going to get anyway, with a lot more attention than was necessary and at a significantly higher expense.

Eugene Freedman is Deputy General Counsel for a national labor union. He has a BS in Industrial & Labor Relations from Cornell University and earned his JD from the University of Maryland.

Eugene Freedman is an author of Baseball Prospectus. 
Click here to see Eugene's other articles. You can contact Eugene by clicking here

Related Content:  Alex Rodriguez,  MLBPA,  MLB,  Arbitration,  PEDs,  Suspensions

13 comments have been left for this article. (Click to hide comments)

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randolph3030

A bit off the specific details of this piece, but can you explain why Selig would refuse to testify? It would seem to me that the burden of proof is still on MLB to defend the suspension since the argument is that the 211 games is extreme and arbitrary. Shouldn't MLB have to justify why ARod is getting a different ban than the others? Or is it that Selig, himself, is claiming he didn't establish the penalty and someone else from MLB is the responsible party?

It may be that I don't know the specifics of the case (which is totally possible because this stuff drains my soul), but this ARod outburst surprised me; maybe it is baseless and just for the circus atmosphere that he loves.

Nov 21, 2013 07:58 AM
rating: 1
 
Bob Stocking

Although I agree that the severity of the penalty makes this feel like a special case, it sounds like Selig doesn't want to set a precedent. Should he testify in this hearing, every player going forward would make the same request.

Nov 21, 2013 08:51 AM
rating: 0
 
godfather

"The Whole Truth And Nothing But The Truth" would be a film that neither Rodriguez nor Selig should be cast in. Selig taking the stand would mark the first occasion in which I'd want to hear him speak.

Nov 21, 2013 08:18 AM
rating: 1
 
Johnson Magic

I would imagine Selig has little or nothing to gain from testifying (setting a precedent might be the least of his downsides...going on the record about the manner in which the Biogensis material was obtained might open him to liability).

I disagree with the statement the the participants show deference to the arbitrator and the process. Perhaps outside the MLB world. MLB's recent history has been the opposite...MLB fired the previous arbitrator for having an opinion with which it disagreed. That's the very opposite of respecting the process.

I'm neither an attorney nor did I spend the night at a Holiday Inn Express, but I wouldn't be surprised if a civil court wouldn't at least entertain the notion that MLB firing the previous arbitrator created an environment in which a high-profile player couldn't reasonably expect a subsequent arbitrator to rule in a player's favor. This saga has had so many sad and bizarre turns I wouldn't rule out the idea that it has a subsequent Act in the courts.

Nov 21, 2013 10:55 AM
rating: 3
 
kcboomer

You would be wrong, of course. Firing an arbitrator has nothing to do with how you treat him while he is part of the arbitration process. Either of the two other sides can terminate an arbitrator after any ruling. And no reason is required. This is not exactly a rare occurrence. In fact it is fairly common.

Each of the two interested parties always treat the arbitrator with respect and courtesy. This done out of professional civility and the knowledge that they may work on future cases together. Even when serving a termination notice it will usually be served with respect. Arbitrators, like managers, are hired to be fired.

What Arod and his team are doing is snubbing the arbitrator during the process. So Arod has made a fool of himself (again) and alienated the one person in the world who could really help him. Arbitrators are very professional people who try to make their decisions based on the evidence (not the personalities)but they are human.

And woe betide the fool who heads to court to counter something that is covered by a CBA. You will get your ass handed to you. It has nothing to do with what's fair and right. It has everything with the law and established precedent.

Nov 21, 2013 12:16 PM
rating: 0
 
randolph3030

No arbitrator worth his/her salt would have their opinion influenced by being called a name outside of the court. Or inside the court, even. If Horowitz is affected by the comments, he should be relieved of his duties on the spot. I don't see why A-Rod's comments have any effect on anything besides PR spin.

Inside the court, there is a huge advantage to knowing the arbitrator as an input in argument crafting - an advantage which A-Rod gave up because he seems to equate cost and ability. That seems to me to be the biggest drawback to bringing in outside counsel rather than the willingness to act the fool.

Nov 21, 2013 12:39 PM
rating: 2
 
Chrisfiander

I partially agree with your opinion. Because I am not well versed in the legal process, I cannot give a proper opinion. Although, I can hundred percent agree on his, "willingness to act the fool". Those five words perfectly describe Rodriquez.

Nov 21, 2013 13:16 PM
rating: 1
 
Llarry

Normally, when some issue heads to court when it really shouldn't, I'm somewhat concerned about the legal fees, about money that shouldn't be spent ending up lining the lawyers' pockets. (And even though I work for a business that sells software to law firms...)

In this case, I really don't care. If anyone's money is going to be pointlessly funneled to lawyers, I'm fine with it being ARod's...

Nov 21, 2013 14:13 PM
rating: 0
 
Eugene Freedman

As I wrote in my previous piece here at BP, linked in this column, MLB bears the burden of proof. If Arbitrator Horowitz believes that MLB did not meet its burden without Selig's testimony, then ARod has already won. More likely, MLB argued and prevailed, that Selig's testimony would be duplicative of Manfred's.

Manfred laid out why MLB believes the penalties were reasonable and appropriate for the conduct alleged. He's high enough in the organization to speak for it on this topic. If MLB proved the conduct by a preponderance of the evidence through fact witnesses, then Manfred's testimony would be enough to make MLB's case on the penalty. It would then be up to the Arbitrator to determine if MLB's arguments on the penalty are truly reasonable and appropriate in accordance with the penalties laid out in the JDA and past penalties of other players for similar conduct.

My suspicion is that even if MLB made its case on the conduct it was overreaching on the penalty, which will be reduced to 50-125 games, with a greater likelihood of 65-85 depending on which charges were proven.

KCBoomer has it right regarding the arbitrators. They are fired all the time as a matter of course, but the parties still respect them in the process. Receive a decision you find wrong or need to save face for your client/memebership, fire the arbitrator. Hire another the next time. Arbitrators know that's part of the normal course of events. It doesn't create a chilling effect. Their integrity over each decision is more important in getting more clients than writing a decision to please a client they are afraid may fire them.

Several arbitrators have told me stories about how when one side fired them after a high-profile case, the other side admitted it would have fired them if the decision had come out the other way. Because of this, the decision is paramount, not any other consideration.

Nov 22, 2013 04:10 AM
rating: 1
 
Johnson Magic

Shyam Das served as an arbitrator for MLB for 13 years until the Braun decision...that length of service would indicate that firing an arbitrator is fairly uncommon, not a regular occurrence.

Nov 22, 2013 09:49 AM
rating: 1
 
sbnirish77

"My suspicion is that even if MLB made its case on the conduct it was overreaching on the penalty, which will be reduced to 50-125 games, with a greater likelihood of 65-85 depending on which charges were proven."

Isn't this just speculation without any basis in fact unless you were a fly on the wall during the arbitration hearing? You have no idea of what was presented.

Nov 22, 2013 19:43 PM
rating: -3
 
Behemoth

That's probably why he says its his suspicion. That, and the publicly available CBA and drug testing agreement which make it pretty obvious that the number of 211 games was chosen arbitrarily by Selig/MLB, and that it isn't really justified by either agreement.

Nov 25, 2013 06:01 AM
rating: 0
 
Eugene Freedman

Dana Edward Eischen was baseball's arbitrator for one case - the JD Drew case, after which he resigned. Other's have had relatively short tenures, mainly because they served where there were a lot of high profile cases (or just one). In the case of Arbitrator Das, he didn't have many cases in those 13 years. It has really been a long stretch of labor peace with few ripples in the pool.

Nov 22, 2013 18:22 PM
rating: 1
 
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