Home / General / I Regret Comparing the A-Rod Arbitration Ruling to <i>Bush v. Gore</i> — It Was Too Kind

I Regret Comparing the A-Rod Arbitration Ruling to Bush v. Gore — It Was Too Kind


As I’ve been saying from the beginning, the obvious problem with the theory that Alex Rodriguez merited an extraordinary punishment is that the collective bargaining agreement specifies a penalty for a first offense: 50 games.  Section 7(A) of Joint Drug Agreement reads as follows:

A player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the possession or use of a Performance Enhancing Substance, will be subject to the discipline set forth below. (emphasis mine) 1. First violation: 50-game suspension; 2. Second violation: 100-game suspension; 3. Third violation: Permanent suspension from Major League and Minor League Baseball.  [My emphasis]

This should be dispositive. Players who test positive — whether they’ve used the same PED on many occasions or multiple different PEDs or both — get 50 games for first offense. This is A-Rod’s first offense. He should have gotten 50 games, or 62 if you grant the commissioner wide discretion over enforcement of the “materially detrimental or materially prejudicial to the best interests of baseball” clause so long as the penalty isn’t so draconian as to be an end-run around the JDA. (The other theory justifying something like the 211-game penalty initially given A-Rod — that his “obstruction” of an investigation he had no obligation to cooperate with merited a punishment 2 or 3 times the underlying offense — is so absurd even an arbitrator deeply buried in MLB’s back pocket refused to take it seriously.)

As we saw yesterday, however, based on Horowitz’s characterization of the facts this created a puzzle. Allegedly, both the MLBPA and A-Rod’s defense conceded that the penalties set out in 7(A) didn’t apply. If true, this would be bizarre if not malpractice — why on earth would A-Rod’s defense concede this point when the plain language of the contract compels a rejection of MLB’s position?

The problem, however, is that the complaint filed by A-Rod’s defense is inconsistent with the assertion that they conceded the 7(A) claim. And now, according to Wendy Thrum, it appears that the MLBPA didn’t concede it either:

In other words, it appears that the Players Association backed off Michael Weiner’s statements in July that the 50-100-lifetime regime in Section 7.A didn’t apply. On that score, Selig threatened that application of Section 7.A. would result in a lifetime ban, as there was ample evidence that Rodriguez had used PEDs at least three times.

For reasons already noted, Selig’s argument is simply wrong — every first offender has of course almost certainly used PEDs multiple times — and even Horowitz didn’t really buy it. But Horowitz doesn’t have anything resembling a decent argument for pulling a separate standard of punishment out his own rectum:

Wait a second. The Players Association argued that the maximum penalty was 50 games as a first violation, but that Section 7.G.2 provided the “governing framework”? And that Section 7.A. — which does contain the 50-100-lifetime penalty scheme — doesn’t apply when there has been “continuous use or possession of multiple substances”? Frankly, that doesn’t make a lot of sense, and it makes me wonder if the Players Association didn’t clearly articulate its view of the governing agreements or the arbitrator misconstrued the union’s position.

Moreover, the arbitrator’s interpretation of Section 7.A. omits a key portion of the language. He points to the first part of the section that talks about a player “who tests positive for a Performance Enhancing Substance” (his emphasis) and concludes that the section couldn’t apply to a situation involving evidence of multiples uses of a PED. But he completely ignores the second part of the section: a player who otherwise violates the Program through the possession or use of a Performance Enhancing Substance will be subject to the 50-100-lifetime regime (my emphasis). What does that language mean if it doesn’t apply to players found to have used or possessed PEDs absent a positive drug test?

Whether he willfully distorted the position of the defense or his characterization was a matter of some form of incompetence from either Horowitz and A-Rod and/or the MLBPA, I don’t see anyway his illogical punishment stacking scheme can be reconciled with the plain language of the JDA. And his only decent argument on behalf of his arbitrary punishment — that all parties stipulated that 7(A) didn’t apply seems to be false. My understanding is that Horowitz misconstruing he language like this probably still won’t give A-Rod much of a case in federal court to vacate the opinion — but I’m far from sure that this level of deference is a good thing.

Look, you probably hate A-Rod. I’m not much of a fan myself. But drug war hysteria is bad and running roughshod over the rights of employees is also bad, and even though A-Rod is far more privileged than the typical victim of either his being singled out for extraordinary punishment on the basis of nothing is still indefensible.

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