Written by Robert Sheridan
On Saturday January 11, 2014, arbitrator Frank Horowitz reduced Alex Rodriguez’s suspension from 211 games to 162 games (plus any 2014 post-season games) for his use of performance enhancing drugs (“PEDs”) and obstruction of the MLB’s investigation into his use of PEDs. The following Monday, A-Rod’s camp filed suit in New York federal court seeking to vacate Horowitz’s decision. Assuming that A-Rod’s strategy is to actually have the decision thrown out, this post will briefly discuss why A-Rod’s legal strategy does not have a high chance of success. If you want to read A-Rod’s complaint along with the arbitrator’s decision (which A-Rod attached to his complaint), click here.
A-Rod will need to overcome a high burden to prevail. The Supreme Court mandates that Courts provide substantial deference to arbitration decisions, vacating them generally, where it is arbitrary and capricious - a difficult standard to meet. Or, in other words, a court should only vacate them where it finds an absence of a rational connection between the facts the arbitrator considered and the legal conclusions the arbitrator made, or where the arbitrator ignored clearly applicable law.
To overcome this hurdle, A-Rod advanced four arguments: (1) the arbitration award does not draw its essence from the governing contracts; (2) is the result of arbitrator’s manifest disregard of the law and misconduct; (3) reflects arbitrator bias; and (4) the MLPBA (baseball’s union) breached its duty of fair representation to A-Rod.
A. Drawing Essence
A-Rod argues that the decision did not “draw its essence” from the two contracts governing his dispute MLB—the contract between MLB and its players (the “Basic Agreement”) and the Joint Drug Agreement (the “JDA”). In short, he argues, these agreements impose a multi-tiered progressive discipline scheme for violators (i.e. 50 games for first violation, 100 games for second violation, etc.). Instead of penalizing A-Rod under this system, the arbitrator’s decision dispenses its own brand of “industrial justice.” This “industrial justice” language comes from United Paperworkers International Union v. Misco, Inc., a Supreme Court case from 1987, which set forth the standards for overturning a labor arbitration award.
Unfortunately, A-Rod’s talismanic invocation of this language is unlikely to win the day for him, because the decision concedes that it is not relying on that multi-tiered system; rather, it relies on the JDA’s separate “just cause” provision – a critical point A-Rod virtually ignores. The “just cause” was the substantial evidence of A-Rod’s use of PEDs and his attempts to cover this evidence up that allowed the Commissioner to suspend him 211 games. (A New York Times article nicely summarizes the implications of the Horowitz Award’s use of the just cause provision - available here).
B. Manifest Disregard of the Law and Misconduct
A-Rod’s argues next that the arbitrator committed a “manifest disregard of the law” and misconduct in the manner by which he conducted the proceedings. A-Rod’s manifest disregard claim is basically a series of concerns about Mr. Horowitz’s evidentiary rulings in the proceeding, such as, for example, his allowance of hearsay evidence and unauthenticated documents. Unfortunately for A-Rod, arbitrators are not bound by the same evidentiary strictures as federal judges and therefore can consider hearsay, unauthenticated documents and unreliable witnesses. In fact the Misco case stated that “improvident, even silly, fact finding” may be the basis for an arbitral award. Even considering Mr. Horowitz’s liberal fact-finding framework, he appears to have carefully considered the evidence before him and made reasoned credibility and corroboration assessments.
A-Rod also accuses the arbitrator of misconduct because he allowed leaks to the media during the arbitration proceeding (arbitrations are supposed to be confidential). However, this argument is unlikely to prevail because the arbitrator did in fact address these media leaks in his decision noting that A-Rod’s team was also responsible for these leaks, and that even if MLB was causing these leaks, it still could not overshadow the breadth of A-Rod’s wrongdoing sufficient to overturn the ban.
C. Arbitrator Bias
A-Rod also claims the arbitrator was biased against him (and in favor of MLB) because of the arbitrator’s love of baseball. However, if passion for the national pastime was cause for recusal, A-Rod would have difficulty finding an impartial judge—just read Justice Blackmun’s introduction in the Curt Flood Supreme Court case (Flood v. Kuhn (1972)) to see how giddy jurists can get over baseball.
A-Rod also maintains that the structure of MLB arbitration incentivized the arbitrator, Frank Horowitz, to rule against him. A-Rod makes a fair point here. The go-to MLB arbitrator is a position of high esteem. And one only need to look at the cause of the venerable Shyam Das (who was dismissed as the MLB arbitrator after his ruling in the Ryan Braun chain-of-custody case) to divine the fate of arbitrators who rule against MLB (an example A-Rod raises in his complaint). However this is the structure agreed-to by MLB and the MLBPA in the Basic Agreement and Mr. Horowitz is widely respected for his wisdom and impartiality. In the words of Mintz Levin’s own Don Schroeder, the odds of getting a judge to vacate the Horowitz Award "are remote at best" and would be “like a polar vortex and a vernal equinox happening at the same time.”
D. Duty of Fair Representation
A-Rod’s last claim is that the MLBA breached its duty of fair representation of him. To substantiate this claim, A-Rod states that the MLBPA failed to stop a variety of MLB leaks (before the proceeding) and failed to intervene in a related lawsuit in Florida. While A-Rod also alleges other missteps by the MLBPA, this claim is unlikely to succeed because A-Rod must prove that the MLBPA acted in bad faith or in an arbitrary or discriminatory fashion—in other words, he has a much higher burden than showing mere negligence by the MLBPA.
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So if A-Rod’s attempt to overturn Mr. Horowitz’s decision is unlikely to succeed, then what is really going on here? Maybe, as many commentators have suggested, A-Rod is staging his war as a public relations gambit. A-Rod in fact, made some comments on January 16, 2014 suggesting that even he does not believe the court will overturn Horowitz's decision. Whatever the case, stay tuned: along with the rest of the legal and sports worlds, we will be watching closely (especially from here in Boston) to see how this all plays out.