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Baseball’s Bush v. Gore

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Well, say this for the Supreme Court of the United States: when they make a lawless decision, they at least have to make it public. Since Frederic Horowitz’s decision isn’t made public, I suppose we don’t know to an absolute certainty that the hearing didn’t uncover evidence that transcends its facial indefensibility.

But as I’ve said before, the full-season suspension of A-Rod is almost certainly an outrage. Let’s assume arguendo that MLB had sufficient evidence that Rodriguez used PEDs. The collective bargaining agreement specifies a punishment for that: 50 games. The full-season suspension of Rodriguez would seem to be based on one or both of these factors:

  • Rodriguez was guilty of “multiple offenses.”  Given that virtually nobody who fails a drug test only used PEDs once, this is ridiculous, and would essentially render the specified punishments meaningless.
  • Rodriguez obstructing an investigation he was under no contractual obligation to comply with merits a punishment more than twice the underlying offense.

I’m not sure which of these arguments is more absurd, but they’re certainly both absurd.  Wendy Thurm has more.

You would think that the MLBPA would react strongly to the commissioner having been given arbitrary powers that violate at least the spirit of the collective bargaining agreement.  But things are likely to get worse before they get better.

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  • Rob

    I’m sure that the last time an arbitrator ruled against MLB he ended up getting fired had no influence on this decision.

    • The whole 60 Minutes thing sounds like something out of Miami Vice.

      Which having lived down there is all too believable. Although I lived in Boca, I had an attempted car jacking while I was out of my car at very well lit I-95 gas station in Miami -with my wife and then 9 year old in the back seat. He slid out of the driver seat when the keys were not in the ignition – I had them to open the hatch. He stole her purse from the front seat right while I was watching.

      Another time I pulled into a Pompano Beach gas station another time to see a white BMW with 7 gun shot holes in the rear driver side door. Not a single stray anywhere else, all through the rear passenger door. Pulled right out.

      But in the weirdest experience, went to a business conference downtown and then to Joe’s Stone Crab to avoid rush hour traffic, While waiting for a table at the bar met a guy who looked and talked just like Richard Foronjy and at the end he paid for our dinner including about 5 bottles of wine for the three of us.

      Claimed to be an MD – was very vague on what type except he was thinking of switching into dermatology. Was from NY, not exactly where, knew Delray Beach where we were located very well.

      We were going through some very strange times with our VC in Boston at the time and I have to say it crossed my mind that this guy was sent to deliver a warning to us, but aside from the randomness of the event and him picking up an extremely large dinner tab nothing happened.

      It’s the wild, wild west down there which kept me on edge the whole time I lived there because I traveled quite a lot throughout South Florida.

  • SP

    During the Patriots game halftime CBS had a preview of the Bosch interview. Bosch’s behavior was like a textbook for intro psychology for how to identify physical behaviors of a liar. Looks like 60 minutes is going to hit the bullshit journalism trifecta.

    • James E. Powell

      When I saw that, I immediately thought of Nathan Thurm.

    • Richard

      I know little about Bosch but after practicing law for 37 years, I can say without question that there is NO way to identify a liar by physical behavior. Some liars give themselves away, some liars dont. Some truthful persons sound like liars. Any psychology textbook that says that liars always give themselves away by their physical behavior is just so much bullshit

      • Toberdog

        +1

      • wengler

        Police departments have been investing in that pseudo-science for awhile now. The old-fashioned way of having a person tell the same story in multiple ways is still the best way. Your brain just doesn’t store a made up story in the same way as one you recall from memory.

  • Glenn

    “Baseball’s Bush v Gore“? Let’s see, one decision summarily installed the President of the US, probably against the electoral outcome, on the flimsiest of legal pretenses. The other marginally reduces the income of a multimillionaire, pursuant to a procedure agreed to by said multimillionaire and his union. Yeah, man, pretty much the same.

    Christ, Scott, I don’t like the anti-PED hysteria either, but some fucking perspective, please.

    • Scott Lemieux

      You think that an argument about “baseball’s” Bush v. Gore implies equivalence with the impact of a presidential election, and I’m the one who needs perspective?

      • Joe

        You are the one who used the metaphor and the drawn out process (e.g., what is the comparison here with the stay?) the stakes even as to baseball as a whole and yeah even the justice of the thing, it is a lack of perspective.

        Ditto tossing this in the ‘war on some drugs’ as if it is anything like most instances of that.

        • Scott Lemieux

          the stakes even as to baseball as a whole

          I dunno, I think allowing the commissioner to arbitrarily throw the collectively bargained drug testing regime out the window at his pleasure seems like a pretty big deal to me.

      • James E. Powell

        Okay, but isn’t Bush v. Gore overdoing it a bit? It’s more like Baseball’s Debs v. United States. Or maybe Baseball’s Lochner?

    • Vance Maverick

      If you care about baseball at all, excluding one of its best players from the game is a huge deal. In that context, obviously.

      • Now, if MLB goes on to wage war against some third word country . . .

        • Rob

          Given what MLB does in some third world countries…

          Seriously, what baseball pulls in its foreign academies and what “agents” get away with is fairly sickening.

      • Thlayli

        Who do you mean by “one of its best players”? You can’t be referring to a 38-year-old who has produced 6.4 WAR in the last three seasons combined.

      • Joe

        I “care about baseball at all” so think the drug policy, interfering with an investigation, refusing to agree to a penalty that would have allowed him to play around June (probably helping him given his age) etc. suggests this isn’t Bush v. Gore of baseball. If “baseball” is our concern, that would at least involve something that hurts the Yankees as whole, since one aging player one way or the other is not too important on a baseball level.

        • Scott Lemieux

          the drug policy, interfering with an investigation

          Please to be explaining how these things could plausibly merit a 162-game suspension.

          refusing to agree to a penalty that would have allowed him to play around June

          Assumes facts that are extremely not in evidence.

          If “baseball” is our concern, that would at least involve something that hurts the Yankees as whole

          Who gives a shit about the Yankees? Indeed, the ruling helps them, but that’s hardly a defense. Indeed, the bailout the Yankees were given is another reason why this is appalling.

  • Sherm

    The arbitration process is a farce imo. Arbitrators are literally above the law and are free to issue lawless decisions. They can basically carve out a remedy which they personally believe is right irrespective of the law and facts, and there’s nothing you can do about it. The standard of review provides in essence that it’s not the court’s job to set aside an arbitrator’s misinterpretation of a contract so long as the arbitrater tried, and they are trained how to write decisions to escape judicial review.

    • Marek

      Almost true, but if the arbitrator indeed dispenses his/her “own brand of industrial justice,” which means going outside the authority that the CBA gives him/her, then a court is supposed to vacate the decision.

      • James E. Powell

        What’s the remedy if the court vacates the arbitration award, another arbitration?

        • Marek

          Depends on the award. If an arbitrator exceeds his authority in favor of the employee, the employer’s original decision is generally upheld without a subsequent arbitration. I’ve never seen an arbitration award in favor of an employer vacated, though I can imagine that if the ground for vacating the award was corruption on the part of the arbitrator, a new arbitration might be ordered.

          • Generally, there is very limited judicial review of arbitrator decisions. And this cuts both ways– when an arbitrator rules for a player in a salary arbitration, the club has little legal recourse too.

            The Players’ Association, for good or for bad, agreed to this sort of arbitration process. Other sports have different processes which allow for more judicial review.

            The people I know who know something about the legal regime surrounding the MLB arbitration process tell me that it’s very hard for A-Rod to overturn this and that this sort of arbitral flexibility may not be consistent with the letter of the collective bargaining agreement, but was itself collectively bargained. Further, part of the reason for this is because the Players’ Association felt cornered by public opinion on the steroids controversy and acceded to processes that may not have been in the best interest of their members.

            At any rate, it’s complicated, and it’s not Bush v. Gore, unless Bush and Gore (or their parties) had agreed in advance to settle any election disputes with a single arbitrator who then went and made a bad decision.

            • Scott Lemieux

              The Supreme Court, like the arbitrator, had the authority to issue a ruling. It just made a really terrible ruling.

  • Snarki, child of Loki

    “…say this for the Supreme Court of the United States: when they make a lawless decision, they at least have to make it public.”

    Assumes facts not in evidence.

  • As a Yankee fan, and one who can’t stand even the sight of A-Hole (at least since he left the Mariners), I hate to defend the guy – but, even a schmuck like me, sitting on my fat ass in my 1950’s-era couch, likes to consider the evidence before I render my word-turd opinion.

    And I ain’t seen none, yet!

    Imo, 50 games would have been enough!
    Other players got nailed with physical evidence.
    They got 50 games.

    Where was the physical evidence against A-Hole?
    Where is it?
    Who gave it?
    Doc Innuendo?

    Baseball’s pursuit of A-Hole was outside of the law.
    They paid people off – so as far as I’m concerned, the whole case is bullshit!!!!!

    Plus, the Commish, the owners, and the MLBPA, all ignored at least a decade – probably more – of players everyone who had eyes could see were probably on PED’s.
    And it was ignored.
    Ignored, because Ripkin’s passing Gehrig’s record after the stupid strike that cancelled a WS’s, wasn’t enough to bring most fans back to the ballpark, and their TV’s and radio’s.
    So, cartoonishly bulked-up players hit more that 50 HR’s a season in just a few years, than they had since Baseball began!

    And it’s A-Rod whose got to take the fall?
    Look, I don’t call him A-Hole for nothin’!
    But there have been, still are, and always will be, huge assholes playing Baseball – or any sport, for that matter!

    I wish the Yankees would just pay him off, and give him his walking papers, after he served a 50 game suspension.
    Now, he’s out for the season.

    For what? Again, where’s the evidence?

    Congrat’s, “Bug” Selig!
    You’ve left an A-Hole hating Yankee fan feeling like A-Hole’s a martyr.

    And just because A-Rod’s an asshole, doesn’t mean that a great injustice wasn’t done!

    • OY!
      “Who’s,” not ‘whose!!!”

      Y kent oui haz “Edit?”

    • Matthew

      The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

      H. L. Mencken
      US editor (1880 – 1956)

      • Yeah, back in the old days, it was, “Better a dozen guilty men go free, than one innocent man be hanged.”

        Now, it’s more like, “Better a thousand innocent minority and poor kids go to prison, than let a single guilty one escape punishment!!!”

        We are a fucked-up and stupid country – because we have a lot of angry fucked-up and stupid people.

        • James E. Powell

          Incarcerating a thousand poor or minority people who are innocent or undeserving of long terms will not cause a single elected official to lose an election.

          One guilty person going free, if the person or the crime is worthy of a Nancy Grace obsession, can easily cause an elected official to lose an election.

          That’s pretty much the whole thing right there. It’s why so few elected officials are willing to talk about ending the War on Drugs. It would spark immediate opposition. Maintaining the War on Drugs, nothing bad happens to elected officials.

  • Ann Outhouse

    I’ve been saying all along that (a) this isn’t just about anti-PED hysteria, it’s also about union-busting and, to a lesser extent, about helping high-payroll teams find a way to ditch aging or injury-prone players with expensive contracts; and

    (b) if the players can’t see the potential for actions such as Selig’s to be used precisely for the purpose of getting rid of ditching aging or injury-prone players for whom the owners paid too much in the first place, then they deserve to get screwed over by the next CBA.

    Unfortunately, it seems that most of the players have drunk deeply from the anti-PED KoolAid bucket and are ready to let the league take over all drug testing and enforcement rather than insisting on an independent third party to handle it.

    • Brien Jackson

      “I’ve been saying all along that (a) this isn’t just about anti-PED hysteria, it’s also about union-busting and, to a lesser extent, about helping high-payroll teams find a way to ditch aging or injury-prone players with expensive contracts.”

      This makes perfect sense. Because the MLBPA is totally trying to bust the baseball players’ union, and Selig’s MO has been to do everything he can to allow big market, high payroll teams to circumvent the luxury tax threshold for the past decade.

      Wait…

    • efgoldman

      to a lesser extent, about helping high-payroll teams find a way to ditch aging or injury-prone players with expensive contracts

      Yup. I have no sympathy for the Yankees. The late Boss clearly made an awful mistake – twice, with this guy. They’re hoping that Bud does for them what they cannot do for themselves, and save them bazillions of dollars.
      Then they turn around and do something similar (although of lesser magnitude) with Elsbury.
      You’d think even big market, rich teams (looking at you, Arte Moreno) would learn the lesson. Not to mention Texas taking Prince Fielder – how long does that kind of body type last, usually?

      • junker

        Let’s not go completely overboard – I am very much not a Yankees fan, but A-Rod definitely performed up to that first contract. It wasn’t an obvious mistake to give out. Even with the Rangers, he earned his salary; they just didn’t field a competent team around him.

        The second one, well, it’s not looking so hot right now.

    • drkrick

      When the NHL issues a disciplinary suspension, the salary the player forfeits goes to the Players Emergency Assistance Fund. The idea is to ensure that a team doesn’t get a financial windfall out of their player’s bad act. It would be a good (if unlikely) thing if other leagues adopted a similar policy. It would either eliminate the temptation to use the anti-drug policy to fix an organization’s mistakes or eliminate the appearance of such an effort.

  • Don’t you just love a situation where every-fucking-body is wrong?

  • Murc

    Rodriguez obstructing an investigation he was under no contractual obligation to comply with merits a punishment more than twice the underlying offense.

    Question for the lawyers: how does obstruction work when its an offense that actually matter, as opposed to a dispute in the entertainment industry? Like, if I commit robbery and then obstruct the ensuing investigation, does my obstruction of justice “enhance” the punishment I get for the robbery, or is it adjudicated as a separate crime? I’m legit curious as to the equivalencies involved.

    • Denverite

      See, e.g., Scooter Libby and Barry Bonds.

      • Breadbaker

        The difference here is that if these were medical records belonging to ARod, he had every right to bid against MLB (which may not have had any right to them at all) to obtain them. That’s not obstructing anything, because there is nothing in the basic agreement or the drug testing program that requires a player to assist MLB in its investigation. MLB’s lawsuit against Biogenesis was close to the line of abuse of process, seeking in essence to bankrupt someone to provide MLB with evidence against its own players. A smarter arbitrator would have seen through the ruse and tossed all the evidence.

        • Richard

          Nonsense. Abuse of process in obtaining the evidence is outside the scope of the arbitrator’s scope of authority under the CBA. MLB got the documents legally (a court said so) and the arbitrator’s only decision was whether the legally obtained documents were relevant to the matter before him. He had no authority to toss the evidence because he didn’t like the legal process under which they were obtained.

          And the claim that this arbitrator is somehow not smart is just plain wrong. I’ve been before him in an arbitration. He’s very very smart.

          I dont know what evidence was provided about obstruction and neither did you and neither of us know for sure that obstruction was an element that the arbitrator used in making his determination of a 162 game suspension.

          • Richard

            And if Bosch is telling the truth, an associate of A-Rod threatened to kill him and people from A-Rod’s group wanted Bosch to go to Columbia and offered him $150,000 to lay low until the matter blew over. If this evidence was presented to the arbitrator and believed, the 162 game suspension isn’t that hard to understand.

            • Al

              If the arb believed that, ARod should have been banned for life. So I’m guessing that wasn’t believable.

    • Richard

      It can be and usually is a separate crime. However in most instances it can also be used as a factor in increasing the punishment for the original crime assuming the punishment for the original crime is a sentence where the judge has some discretion in the length of the sentence.

  • SP

    The most specious reasoning I saw was from a NY beat writer who said essentially that all these other guys who admitted guilt were in Bosch’s docs so since Arod is there too why doesn’t he just accept his punishment. Because it’s inconceivable that a guy like Boach might add a big name to his records to get some more payoff from MLB for the docs.

    • Scott Lemieux

      Plus, none of those guys were suspended for more than 200 games. I’m sure if they had offered ARod the deal Braun got he would have taken it.

  • brad

    The only possible logic I can see in this is 50 for a first offense, 100 for a second, and 12 for Bud thinking ARod is a poopyhead. Bad logic, but a kind of logic.

    And I’m still waiting on Bud to have the owners create a fans’ fund pool and ticket price rollback system to give back all the tainted profits these monstrous players forced him and the other owners to rake in.

    • You’ll wait a long time. If he did create such a pool he should include about 80% of his own multi-million dollar salary as well.

  • i agree, assuming that MLB had evidence of drug use, a 50-game suspension was appropriate. Given that’s it’s A-Rod, chemical castration would also be an appropriate punishment for everything else.

  • Marek

    Well, if Rodriguez follows through on his threat to take this to federal court, we’ll all see the decision soon enough. It will have to be attached to the complaint, which will put it in the public domain. Can’t wait.

    • Denverite

      I don’t know about MLB arbitrations, but a lot of arbitrations don’t result in a written decision other than “so and so wins $X.” Arbitrators are generally encouraged not to explain their thought processes because it gives the losing side something to attack in court.

      • Marek

        That’s not my experience with labor arbitrations – we’re paying for an arbitrator to interpret a contract in such a way that provides both parties with guidance in the future – but OK.

        • Denverite

          I was just about to add that I thought labor arbitrations are a good bit different.

      • Sherm

        There will be a written decision. Bank on it.

        • Richard

          I think there will be a written decision but I think the CBA provides that it not be made public. Of course, its very possible that A-Rod’s attorneys will attach it to their complaint in federal court (assuming that complaint, which has no chance of succeeding, is actually filed)

          • Marek

            Care to speculate on A-Rod’s theory of his case? He’s not a party to the CBA. He’d probably have to sue MLBPA as well as MLB, if I remember how that works.

            • Richard

              My guess is that he will argue that he has standing to appeal the decision since he was affected by it (despite the fact that he is not a party to the CBA). I dont know if he has standing to do that (but haven’t ever looked at that issue). I know he can sue the union for ineffective representation but I think he has waived that in this case because he declined their offer of representation and insisted on putting on his own case.

  • TapirBoy1

    Is it possible that Rodriguez’s appeal will make the decision public? One or both parties could move for the arbitrator’s opinion to be filed under seal, of course, but just as arbitrator’s opinions general are not public, federal district and circuit court opinions always are.

    As some folks above noted, arbitrator’s opinions are usually substance-free anyway, but it sounds like this different in the collectively bargained MLB environment.

    I have no sympathy with Rodriguez’s irksome persona or his alleged behavior, but is hard to see how his violations add up to the original suspension, or the reduced figure arrived at by the arbitrator. And I am kind of a stickler for that whole rule of law/due process/organizations should abide by their own rules meta-concept.

  • Brien Jackson

    I was wondering when this was coming, and it’s basically as thin as I expected it to be. Quickly:

    Since Frederic Horowitz’s decision isn’t made public, I suppose we don’t know to an absolute certainty that the hearing didn’t uncover evidence that transcends its facial indefensibility.

    Biting wit aside, there’s absolutely no substance here. The arbitrator’s decision not being made public isn’t unusual at all, and indeed it wasn’t released in the Braun case (the highest profile player victory) either.

    This, however, is just downright weird:

    “You would think that the MLBPA would react strongly to the commissioner having been given arbitrary powers that violate at least the spirit of the collective bargaining agreement.”

    You would, indeed, think that, but instead we’ve got two instances, under two different union leaders one might add, in which a) They signed off on an obviously more indefensible enhanced punishment against Ryan Braun, b) They’ve said they won’t pursue an appeal in federal court for what, in your formulation, is a completely fictitious reading of the JDA. Or, in other words, neither party to the CBA would seem to share your interpretation of its spirit.

    • Scott Lemieux

      Biting wit aside, there’s absolutely no substance here. The arbitrator’s decision not being made public isn’t unusual at all, and indeed it wasn’t released in the Braun case (the highest profile player victory) either.

      Who said it was unusual? I was merely conceding that we can’t be entirely certain that the ruling is as indefensible as the outcome suggests on its face.

      They signed off on an obviously more indefensible enhanced punishment

      Um, really? 15 games for a vague obstruction charge is worse than 112 games for a vague obstruction charge? At any rate, Braun agreed to it.


      neither party to the CBA would seem to share your interpretation of its spirit.

      Arguing that an arbitrator violated the “spirit” of a contract won’t get you very far in federal court, but it doesn’t mean that the ruling isn’t odious.

      Meanwhile, I note that you have yet to actually defend your position that obstructing an investigation you have no obligation to comply with could be worth more than twice the underlying offense.

      • Brien Jackson

        “Um, really? 15 games for a vague obstruction charge is worse than 112 games for a vague obstruction charge?”

        Well, in so much as MLB at least vaguely accused A-Rod of obstructing the investigation and soliciting other customers for Bosch, while in Braun’s case they didn’t pretend the extra games were for anything but having the nerve to deny using drugs when he’d previously been caught, then yes, I would say the Braun example is far more concerning on its face than A-Rod’s.

        “At any rate, Braun agreed to it.”

        So? The union has no obligation to accept that if the potential damage to the larger group of union members outweighs the individual interest. If anything, that Braun agreed to a token increase in his suspension for no good reason under the threat of MLB seeking to impose an even greater punishment for no good reason is quite a bit of reason for the union to reject it.

        “Arguing that an arbitrator violated the “spirit” of a contract won’t get you very far in federal court, but it doesn’t mean that the ruling isn’t odious.”

        I don’t see why not, at least in this case. The biggest problem is that the letter of the agreement is lacking specifics, to say the least, so if the union didn’t share the commissioner’s interpretation of the agreement that would be fairly relevant to its interpretation. At the very least, you would think the union would very quickly exercise their authority to fire the arbitrator if they thought he’d just dicked them over altogether.

        As it stands though, while the union might agree that the length of the suspension is excessive, at no point have they done or said anything to suggest that they agree with your interpretation of the JDA, and in fact have done just the opposite.

        “Meanwhile, I note that you have yet to actually defend your position that obstructing an investigation you have no obligation to comply with could be worth more than twice the underlying offense.”

        I’m actually surprised at the length of the suspension (I thought he’d get 100 games, honestly). But then, we don’t know what the extent of the allegations/evidence are, and what we do have to go on (A-Rod’s general grandstanding during the process and the fact that basically no one is standing anywhere near him at this point) doesn’t exactly make one inclined to think that A-Rod is on firm standing in whatever he’s arguing this week.

        • Scott Lemieux

          Well, in so much as MLB at least vaguely accused A-Rod of obstructing the investigation and soliciting other customers for Bosch, while in Braun’s case they didn’t pretend the extra games were for anything but having the nerve to deny using drugs when he’d previously been caught, then yes, I would say the Braun example is far more concerning on its face than A-Rod’s.

          I still don’t understand this. My position is that PED use should be punished on the terms agreed to by collective bargaining, so Braun and ARod both should have 50 game suspensions. Neither broke any additional specific rules, and 112 games for nothing seems a lot worse than 15 games for nothing. If one takes your position, however, that arbitrary punishments based on ex post facto offenses are completely appropriate for the commissioner to unilaterally impose in ARod’s, I’m not sure what’s different about Braun’s case. Why is lying about your PED use not subject to arbitrary punishment if refusing to cooperate with an investigation you have no obligation to comply with is subject to arbitrary punishment?

          • Brien Jackson

            ” My position is that PED use should be punished on the terms agreed to by collective bargaining, so Braun and ARod both should have 50 game suspensions.”

            And your position is supported by neither Major League Baseball nor the MLB Players’ Association.

            “Why is lying about your PED use not subject to arbitrary punishment if refusing to cooperate with an investigation you have no obligation to comply with is subject to arbitrary punishment?”

            Seriously, you can’t just keep saying things about a collective bargaining agreement that neither party to the agreement agrees with like it’s just supposed to be taken at face value.

            • Scott Lemieux

              I wouldn’t want to defend the arbitrary punishments leveled against Braun or Rodriquez on the merits either, so I can’t blame you. (Again, whether the arbitrator is within is formal discretion and whether his judgment was wise are different issues. Can you point me to the MLBPA agreeing with you on the latter?)

            • junker

              The fact that the MLBPA didn’t fight for A-Rod or Braun shouldn’t be taken as evidence that the punishment is correct. It’s been noted elsewhere that they seem to have agreed to throw him to the wolves because he cuts an unsympathetic figure.

              Put another way: imagine I get accused of a crime, but no lawyer is willing to represent me. That doesn’t make me automatically guilty.

              • Marek

                MLBPA did fight for A-Rod. Where’s the evidence they didn’t? However, the union is under no obligation to present perjured testimony, or otherwise support a case they believe to be false.

            • Marek

              Page 19 of the arbitration decision states that, if the panel finds just cause for some punishment, then it should be a 50 game suspension for a first offense.

              • Marek

                ack, I mean it says that the MLBPA takes that position.

  • Richard

    Any defense/criticism of the decision should really wait until someone sees the decision (if indeed there is a written one). I have had dealing with this arbitrator. He’s very bright and my educated guess is that the decision isn’t just random but that there was evidence of both copious PED use and attempts to hide/destroy that evidence. (My understanding is that the decision is not public now because of the CBA between the league and the union which requires that the decisions not be made public.)

    As far as the union making clear that it isn’t going to blast the decision, the union went ballistic when MLB threatened to appeal the Braun decision. Its point was that the CBA provided for a binding and final decision by the arbitrator. It can’t take a contrary position now.

    I’ve done a lot of work on the finality of arbitrator decisions. If Rodriguez follows through with the threat of appealing the decision to federal court, he has no chance of success (unless he can show that the arbitrator has a financial/fiduciary interest in MLB).

    • TapirBoy1

      Yeah, I think this is a sign that Rodriguez is truly egomaniacal and/or his counsel is taking him for a ride. Everyone knows that arbitral judgments are very rarely disturbed, and there is no reason to believe the federal courts will do so in this case.

    • Richard

      Let me also suggest that A-Rod’s attorneys did a terrible job of representing their client (although a pretty good job of taking his money and creating publicity for themselves). They regularly blasted the process and the arbitrator and after promising that they would call 10 to 20 witnesses, they ended up calling two (including the president of the Yankees for testimony that was not helpful). Of course, they didn’t call A-Rod so there was no affirmative evidence that he didn’t take PEDs. Not calling your client often works in a criminal case where the burden of proof is guilt beyond a reasonable doubt, its doesn’t work in civil cases or arbitration where the burden of proof is a mere preponderance of evidence.

      • TapirBoy1

        I agree. Then again, “representing their client” in this case may have meant ginning up PR for A-Rod as much as developing shrewd tactics for the arbitration. Even on this score his attorneys likely failed, however.

      • Brien Jackson

        They released a statement after the 60 Minutes piece claiming that this will naturally lead to MLB abolishing guaranteed contracts and instituting lifetime bans for a single failed drug test in 2016. Suffice it to say, the behavior of A-Rod and his legal team for months now doesn’t exactly give anyone any reason to think that they actually have any legs to stand on.

    • Brien Jackson

      “As far as the union making clear that it isn’t going to blast the decision, the union went ballistic when MLB threatened to appeal the Braun decision. Its point was that the CBA provided for a binding and final decision by the arbitrator. It can’t take a contrary position now.”

      Um, they could totally take that position if the arbitrator just made up language in the JDA to impose the decision. The problem with MLB’s case against Braun would have been that it was totally baseless, and would have been premised on a matter of fact.

      • Richard

        Yes, if the arbitrator had totally made up language in the agreement to justify his decision. But nobody (including the union) believes that is what happened. This is a smart and experienced arbitrator. He made a decision. The union disagrees with it. One side always disagrees with the decision but this is a decision that a court is not going to set aside as being outside the jurisdiction of the arbitrator.

        And I dont think the decision in the Braun case was necessarily premised on a matter of fact. He found that there was a problem in the testing protocol based on chain of custody and, as a result, the test results couldn’t be used. There was a very viable argument to be made that even if there was a minor problem with chain of custody, the results could be used and that the arbitrator used the wrong legal rationale in deciding admissibility(rather than a factual dispute over what happened with the evidence). The union was right that the decision could not be legitimately appealed but I think that is very likely the same result in the A-Rod situation.

        • Scott Lemieux

          Right. One can argue that the arbitrator made a bad decision without arguing that he was entirely outside of his legal authority.

  • Tehanu

    I still think that all the fuss over PEDs and asterisks on records and the HoF is … a waste of time and energy. I keep pointing out that lots of players juiced and only a very small percentage of the juicers actually set records and became (or maintained their positions as) big stars. The vast majority of juicers were down at the Mendoza Line both before and after, so obviously juicing can’t have been the operative factor, or at least, not the only important one. And that brings me to the whole issue of the HoF voters — most of whom never turned down a beer in their lives — getting all Pecksniffy about “character” as an issue in who gets in. Or as Dennis Farina’s character so memorably observed in Get Shorty, “What a bunch of fuckin’ bullshit.”

    • efgoldman

      Really, the best and easiest “reform” the BBWA and HOF could make to the process, is to remove the character clause from the requirements. Yeah, a bunch of old farts like me would bitch and whine – so what?

  • James E. Powell

    For the labor lawyers out there, is MLBPA v Garvey still good law?

    • Richard

      Yes. Baseball arbitrator ruled in favor of MLB, Ninth Circuit reversed and entered its own finding, the Supreme Court reversed and reinstated the arbitrator ruling holding that the courts have almost no power to reverse an arbitrator ruling. 8-1 decision as I recall.

  • Steve S.

    Baseball’s Bush v. Gore

    By calling it this are you suggesting that Fredric Horowitz is an ideological hack?

  • JRoth

    Lest we miss it: Scott’s argument rests in part on the idea that any positive drug test is implicit evidence of multiple instances of usage, and therefore non-test evidence of multiple usage should be treated as identical to a single failed drug test.

    So let’s flip it: is a Scott arguing that anyone caught with a single positive drug test should be prosecuted for multiple offenses? Of course not; the idea is laughable, and Scott’s head would spin over such a claim. But he wants to use THAT EXACT REASONING to defend his position, because PEDs in baseball make his brain shut down. Five more of these posts, and I’m going to start suspecting that Bush v. Gore was a correct ruling after all.

    • junker

      I think you might need to work on your reading comprehension. Scott’s point is that punishment for a first offense is 50 games; the only way you can justify more than that is to claim that he committed more than one offense. Since most players who fail drug tests likely don’t do so the literal first time they use the drug, then any player who fails should face the multiple use penalty, rendering the distinction between first and later uses meaningless. In other words, the only way the “3 strike system” works is if you treat the first time as a one time thing, and the second time as a one time thing, etc.

      It is indeed laughable to think that anyone caught with a single positive test should be prosecuted for multiple offenses; that’s the point. A-Rod should not be prosecuted for multiple offenses. Your anti-PED hysteria has blinded you to simple logic and reason. You’d rather see a PED user punished as much as possible than see the regime administered fairly.

    • James E. Powell

      First, a prosecution would be for a criminal offense. We are talking about an employment agreement.

      Second, no, Scott is not arguing that some one who fails a single drug test should be deemed to have committed multiple violations of the no-PED rules. But you know that.

      I’m curious, did you think that “let’s flip it” was a good way to counter an argument? If so, why?

    • Scott Lemieux

      So let’s flip it: is a Scott arguing that anyone caught with a single positive drug test should be prosecuted for multiple offenses? Of course not

      Indeed, of course not! Since that doesn’t follow at all; your whole argument is just a massive non-sequitur.

      PEDs in baseball make his brain shut down.

      Talk about projection.

  • SP

    Has anyone pointed out that the 10:45 vs 10:30 thing in Bosch’s appearance on 60 minutes makes no sense? “15 minutes made all the difference.” Baseball games can be anywhere from 2:15 to 4 hours. Is he saying that if Arod played in a pitcher’s duel he would have been busted?

    • SP

      Actually, I eagerly await some hack sportswriter using Bosch’s claim to support the idea that Arod isn’t “clutch,” because he had to make sure the drugs were out of his system by 2 hours after game time in the event of a short game so he was never juiced for late innings and couldn’t perform.

  • philadelphialawyer

    To me, the only saving grace is that baseball usually loses in court. They used to lose in arbitration as well, but I guess they have gotten better at stacking that deck. I hope A Rod kicks their butts in Federal Court.

    The persecution of A Rod is disgraceful. Major League Baseball is run by sanctimonious, hypocritical shitheads, and has been for years. Bud Selig is douchebag number one, and always has been.

    Baseball pretended there was no such thing as steroids, even though they were banned under Federal law, as well as by the NFL and in international sports. Rode their bullshit Mark McGwire home run “record” for all it was worth and had no policy on steroids whatsoever. Using steroids was not even nominally against the rules of baseball, even though it was a Federal crime!

    Then, when their total horseshit was exposed, they tried to turn on a dime. Then, well waddayaknow, they were all about cleaning up the game. Calling in phony “statesman” for hire, have-spurious reputation, will-travel, George Mitchell, to concoct a self serving “report” and lie about providing anonymity.

    The owners, a group of dirty pigs who tried to undo the self inflicted damage they caused their own business with the 1994 shutdown (when they were already making money hand over fist, but couldn’t agree among their own greedy selves how to distribute it, like swine at the trough fighting over the last bit of swill) with a phony “power surge.” Yeah, the Lords of Baseball didn’t know what was going on! Remember “Chicks dig the long ball?” Remember Brady Anderson, who had never hit more than 21 home runs in a year suddenly hitting fifty?! Fifty! Used to be guys like Willie Mays and Mickey Mantle hit fifty home runs maybe once or twice in their careers. And now, somehow, at age 32, a mediocrity like Brady Anderson is doing it! As well as driving in a hundred and ten runs and getting damn near a hundred extra base hits (previous highs, 80 and 59, respectively). But no, no one had any idea what was going on! Go bullshit someone else, Bud.

    Barry Bond and now Alex Rodriguez are to be the scapegoats. Their punishment is to make up, somehow, for the cynical encouragement and, indeed, celebration, of an era of steroid-fueled exploits. The entire organizational and ownership structure of a sport gives performance enhancing drugs not only a seat at the table, but the place of honor, but then, when the tide turns, instantly start posing as little J Edgar Hoover wannabe Junior G Men, all about “enforcement” and the “integrity of the game.” Screw you, MLB; screw you, owners; screw you, Bud Selig. And screw most of the media too, starting with the New York Daily News, which pretends to not understand what is going on here while it fellates the owners, the leagues, and the Commissioner.

    • Scapegoating – it’s a proven, successful strategy of misdirection.

      Faster, easier than dealing with the underlying problems. Lets the owners off the hook while satisfying to the masses who want their pound of flesh and feeds the egos of the media.

      What’s not to like?

      • Or as a boss I had with flexible standards of morality often said:

        “It doesn’t have to work, it just has to sell.”

      • philadlephialawyer

        Yeah, and notice I actually forgot to mention just how sleazily MLB went about scapegoating Bonds and A Rod. Making “confidential” info public. Leaking. Buying evidence from dirtbags in dark alleys. Etc, etc.

    • ChrisS

      ARod’s biggest mistake was thinking he wasn’t going to get caught. It’s pretty obvious that he was sloppy as hell in dealing with this Bosch especially it followed closely on the heels of the “steroid crackdown”.

      MLB is certainly without fault, but I can’t defend Arod against anything.

      • philadelphialawyer

        Please. So A Rod got caught and thought he wouldn’t. Big deal and who cares?

        The rule is get caught and face a fifty game suspension, period. Not get caught and get strong armed into either accepting a two year suspension or have all of MLB and its lackeys in the media and elsewhere hound you day and night, go out and buy “evidence” from scumbags, lie, cheat, make up shit out of whole cloth, and otherwise distort the process beyond recognition.

        A Rod is one athlete who used PEDs. That is not even close to the level of evil represented by MLBs organized, systematic, unethical, fraudulent, dishonest, disgusting, phony as a three dollar bill and transparently self serving course of conduct in its fake “crackdown” and persecutions.

    • Al

      100%

  • wengler

    And now the Yankees should do the right thing and donate the entirety of ARod’s salary to charity- without taking a tax write-off on it.

  • Richard

    According to newspaper reports today, there is a written decision by the arbitrator and A-Rod’s attorneys moved to be allowed to file a complaint against baseball but seal the arbitrator decision (presumably because the decision had some very uncomplimentary things to say about A-Rod). The attempt to file the decision under seal was denied. If these reports are true, we should be able to see the decision as an exhibit to the complaint within a day or two.

    • Marek

      The complaint was just filed (USDC Civ. 2014-00244, SDNY). Defendants are MLB, Office of the Commissioner, and … MLBPA.

      • Richard

        Initial news reports were wrong. A-Rod’s attorneys sought permission to attach the decision. The union opposed. The judge ruled in A-Rod’s favor (as he should have). Arbitrator’s 33 page decision is now public.

        • Richard

          Just read the decision. Arbitrator gave him 50 games for each of the three banned substances he was found to have used plus the additional games for trying to bribe Bosch to leave the country and urging him to sign a perjurious affidavit. I’m sure Scott will post more but, at first glance, it seems a decision that will clearly not be overturned.

          • Marek

            There are non-frivolous grounds to challenge the decision on its merits (permitting Bosch to invoke the 5th amendment while accepting the testimony he did give*; reading the JDA to permit a separate 50 day suspension for each separate drug; permitting a member of the panel to testify; et al.), but no non-frivolous grounds to contend that the MLBPA failed in its duty to represent A-Rod. Unfortunately for him, that’s necessary in this kind of lawsuit, so A-Rod will lose before the court even gets to the merits of the decision.

            *This does not mean that I think A-Rod would likely succeed in a straight challenge to the award, just that it’s not a ridiculous argument.

  • Pingback: Why A-Rod is right to appeal his suspension – Los Angeles Times – Daily News Headlines()

  • Al

    Great discussion, folks. I appreciated the level and sincerity of the discussion here. I’ll do my best to not gum up the works.

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