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Legal Look: Breaking down A-Rod's appeal

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Eric Macramalla, TSN Legal Analyst
8/6/2013 12:25:45 PM
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He made it official - he's going to fight. After Major League Baseball suspended New York Yankees slugger Alex Rodriguez for 211 games on Monday, he declared he would appeal his punishment.

That said, here's your breakdown on the performance-enhanced road ahead.

On what basis did Major League Baseball suspend A-Rod?

Here's MLB's statement on the suspension:

"Rodriguez's discipline under the Joint Drug Prevention and Treatment Program is based on his use and possession of numerous forms of prohibited performance-enhancing substances, including Testosterone and human growth hormone, over the course of multiple years. Rodriguez's discipline under the Basic Agreement is for attempting to cover up his violations of the Program by engaging in a course of conduct intended to obstruct and frustrate the Office of the Commissioner's investigation."

So this means that baseball relied on two different agreements when suspending A-Rod. The first is the Drug Policy, which provides that a player can be suspended if he tests positive for PEDs (didn't happen here) or if there is evidence he used PEDs (happened here).

Beyond the Drug Policy, MLB suspended A-Rod under its Basic Agreement, which provides that a player may be disciplined for conduct that is detrimental or prejudicial to the best interests of baseball.

So the basis for the suspension has a couple of prongs to it.

When will the appeal be heard?

According to the Drug Policy, the whole appeal process, including the decision, should take about a month. That's how it generally goes down. But not here.

In situations where you have a positive drug test being appealed, the appeal can be disposed of in 30 days or so. Those types of cases can be more or less straightforward. However, with A-Rod, there was no positive drug test. Rather, MLB based its suspension on volumes and volumes of documentary evidence, like text messages, emails, and testimony in the form of affidavits (or sworn statements). Before A-Rod's lawyers are ready to appear before the arbitrator, they will carefully review all the evidence and consider its reliability and truth.  They will do this evidentiary piece by evidentiary piece. That takes a lot of time. So expect the appeal to be heard after the season – maybe in October or November. So later rather than sooner.

Since A-Rod can play pending his appeal, he will play the rest of the season and into the playoffs if the Yankees make it that far. This assumes he doesn't get hurt or test positive.

Who is the arbitrator?

His name is Fredric Horowitz, he's 64 years old and specializes in labour and employment arbitration. After MLB fired arbitrator Shyam Das when he overturned Ryan Braun's suspension, Horowitz was hired to replace him and handle these types of grievances. He's been a full time arbitrator since 1988. If you want to learn more about him (and have nothing better to do), click here to read his CV.

So let me get this straight: MLB or the Union can fire Horowitz if either don't like his ruling?

Yep.

That seems like a lot of pressure?

They're used to it.

How does the arbitration hearing work?

It's a bit like a mini trial. Both sides present their evidence and call witnesses. It is, however, less formal than a trial.

What type of power does the arbitrator have?

The arbitrator's ruling will be binding on the parties. So whatever he decides, the parties have no choice but to follow it. Horowitz has the discretion to change the suspension. He may, for example, lower the suspension to 150 games. He also has the power to completely vacate or overturn the suspension. He's powerful.

What will A-Rod argue at the appeal?

Ultimately, A-Rod will focus more on the length of the suspension and less on the merit and substance of the suspension. He will say that the collectively bargained Drug Policy provides for a 50 game suspension for a first time offender like him, and as a result his 211 game suspension is not only excessive and heavy-handed, but also not in keeping with the Drug Policy. The Drug Policy calls for a specific punishment for a first timer, and that punishment was ignored in favour of a far longer suspension.

Also expect A-Rod to go after Bosch's credibility. The founder of Biogenesis has allegedly engaged in criminal activity. As well, Bosch only cooperated with the league after it sued him. So A-Rod may question Bosch's motives, and by extension the reliability of his evidence. So from A-Rod's standpoint, Bosch is flawed and vulnerable to attack. Same thing for Porter Fisher, the Biogenesis investor who blew this case wide open.

What will MLB argue?

The league will declare that A-Rod's suspension, while harsh, is completely warranted. MLB will argue that A-Rod has engaged in an extensive and continuous pattern of PED use since at least 2010. He also has a long standing relationship with Bosch that may date back to 2009. MLB may also allege that A-Rod obstructed its investigation, tampered with witnesses and generally interfered with its attempt to get to the truth. He may have also recruited players to Biogenesis. Ultimately, his pervasive and wide ranging pattern of wrongdoings is not only contrary to the Drug Policy, but also the MLB's Basic Agreement, which allows baseball to discipline a player for conduct detrimental to the game. So given these various factors, A-Rod's suspension is reasonable.

Who will win on appeal?

Don't know. The evidence will rule the day, and without having the benefit of reviewing it, we can't know how this will unfold. The past may suggest we will see a reduction in the length of the suspension (maybe to 150 games), but that's just a guess. If the evidence is strong, Horowitz will leave the suspension as is.

What if A-Rod doesn't like the arbitrator's ruling?

If A-Rod is dissatisfied with the arbitrator's decision, he could take his case to court. Generally, courts don't like interfering with the decision of arbitrators since arbitrators are specialized and know their area pretty well. So unless the decision is really bad, a court may just tell A-Rod to live with it. However, merit of an appeal aside, if A-Rod heads to court, this case could drag on for years. He has threatened to fight this and dig in, so court is possible.

Well, that's not fun.

No it's not. None of this is.

Eric Macramalla is TSN's Legal Analyst and can be seen on TSN SportsCentre and heard on TSN Radio 1050. You can follow him on Twitter @EricOnSportslaw.




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