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The Arbitrator’s Decision: Creatively Counting to 150

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I’ve received a copy of the complaint Alex Rodriguez has filed in federal court seeking to overturn the arbitration decision against him and naming the MLBPA as a defendant as a result of their alleged failure to advance and aid in his defense. A full copy of the documents can be read here.

I have skimmed past the initial complaint allegations — many of them are repeats from his previous lawsuit against Major League Baseball and we’ll get to those in due time — and have gone down to the arbitrator’s decision in order to try to understand the basis for Rodiguez’s 162-game suspension. The breakdown: 150 games for violating the Joint Drug Agreement and 12 games for obstructing Major League Baseball’s investigation.

Following a lengthy recitation of the facts, the overview from the arbitrator is short and sweet:

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  • AROD’S VIOLATION OF THE JOINT DRUG AGREEMENT AND HOW THE ARBITRATOR GOT TO 150 GAMES FOR DRUG VIOLATIONS

The fact of a violation is laid out fairly painstakingly via the arbitrator’s review of the facts, as provided by Anthony Bosch and his records. Multiple contacts between Bosch and Rodriguez over a period of three years, during which Bosch provided multiple banned substances to him. How many? Three distinct ones, which becomes important to the penalty:

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Why is three important? Because each side and the arbitrator agreed that the standard 50 game/100 game/lifetime ban penalties only apply when there is a SINGLE violation, as evidenced by an actual positive drug test. When there is a pattern of use — say, of three substances across three years, the Commissioner can use “just cause” penalties and use his discretion:

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This is where I take issue with the arbitrator. Section 7(A) is not purely limited to a single positive test. It says this:

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.

I would think that A-Rod is in the “or otherwise violates” camp and that 7(A) is still in play. 7(G), the just cause provision he moved under, is not invoked unless the violation is “not referenced” in section 7(A). I’d argue that “otherwise violates” is referenced there, but the MLBPA and A-Rod appear to have conceded the matter, so there we are.

But even the arbitrator seems uncomfortable with giving Selig a blank slate. He tries to look at the “guideposts” of the 50/100/life matrix in section 7(A) and sort of retrofit A-Rod’s drug use on to it. It’s a long passage, but it’s AMAZING. He says 7(A) doesn’t apply, so we go elsewhere, but if 7(A) DID apply, we’d be able to stack up 50-game penalties against A-Rod because he used three things:

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Never mind that the Neifi Perez case did not involve HGH or testosterone, it involved stimulants, which are treated quite differently. Never mind that other Biogenesis players — specifically Bartolo Colon and Melky Cabrera — were not given multiple levels of discipline because, according to baseball, they already did their time, as it were.  This seems remarkably shaky to me. It is a new way of approaching drug discipline that just so happens to achieve Major League Baseball’s desired result of a lengthy suspension.

Major League Baseball actually argued for a lifetime ban here, saying that if A-Rod had three distinct offenses he’d get a 50, a 100 and a lifetime stacked on top of each other. That actually makes more sense to me. After all, if a player who got a 50 game test suspension last year tested positive for a different substance tomorrow, he’d get 100 games. There would not a be a 50 game suspension because it is a different substance, which is what the arbitrator is basically doing here. In essence, the arbitrator is going lighter on A-Rod than the logic he actually subscribes to would have him do. It would at least be intellectually consistent for him to ban Rodriguez for life.  The arbitrator was obviously loathe to do that. But if the logic train he followed drove him off a cliff, maybe he shouldn’t have followed that logic train in the first place. Maybe he shouldn’t have tried to invent his own standard.

  • ANTHONY BOSCH’S CREDIBILITY: POOR, BUT NOT FATAL

As for A-Rod’s attacks on Bosch’s credibility, the arbitrator was not impressed. He took notice of the fact that Bosch was a scumbag who sold drugs, lied about his credentials and contradicted his own story multiple times in the runup to the hearing. But, even with that in mind, Bosch’s testimony was corroborated and was not contradicted:

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Much of the corroboration came via text messages between Rodriguez and Bosch. Blackberry text messages. The richest player in the history of baseball uses a Blackberry. Think about that for a bit.

  • A-ROD’s OBSTRUCTION OF THE INVESTIGATION

Major League Baseball has spent a lot of time and energy trying to establish that A-Rod obstructed the investigation, sought to buy or destroy evidence and, if you believe Bosch himself on “60 Minutes” last night, tried to threaten and intimidate him or, at the very least, tried to shoo him out of the country for a while.  The arbitrator did not buy most of this, it seems. He focused instead on A-Rod denying he knew Tony Bosch and trying to get Bosch to lie:


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I think it’s safe to say that Major League Baseball’s claims of A-Rod’s awful obstruction were greatly overstated. And, in light of what MLB did to obtain evidence, it acted in a far more shady manner than A-Rod did.

  • BREACHES OF CONFIDENTIALITY OF THE DRUG PROGRAM

There was a brief discussion of the confidentiality violations of the parties. Leaks to the media and press conferences and things during a process that is supposed to have everyone quiet and respectful of what is, by design, a secret proceeding.  The arbitrator basically threw up his hands here, noted that both sides did it all the time, that he couldn’t do anything to hunt down the leaks in anything approaching a timely manner and that, ultimately, it didn’t matter because the leaks and things did not affect his decision.

That actually seems pretty smart. No one did well in this department.

  • CONCLUSION

So that’s the first pass here. It’s hard to disagree with the arbitrator’s finding of some violation. It’s clear that the obstruction evidence presented by Major League Baseball was not terribly persuasive to him, as it amounted to only 12 games on top of the 150-game suspension. Finally, it’s clear to me that the 150-game suspension was based on, at the very least, a unique interpretation of the Joint Drug Agreement.

I believe, ultimately, that Major League Baseball will win the lawsuit A-Rod filed today as his best arguments are one of interpretation of the Joint Drug Agreement, and that is not enough to cause a court to overturn an arbitration. But I do believe that the arbitrator’s interpretation of the JDA was unsound and that the result — suspending Alex Rodriguez for a long time — was the tail that wagged the dog of his legal interpretation.  That’s what Major League Baseball wanted. It’s what the arbitrator felt he should get.  And he found a way to make it happen.

A way I do not believe anyone else ever considered before. Or, for that matter, should have.

Adams homers in 16th to lift Cardinals over Dodgers 4-3

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ST. LOUIS — Matt Adams homered in the 16th inning to lead the Cardinals to a 4-3 win over the Los Angeles Dodgers on Friday night for St. Louis’ season-best fifth straight victory.

It was the second consecutive game that the Cardinals won in their final at-bat. They beat the Padres on Thursday after scoring a run in the ninth inning.

Adams homer came with one out off Bud Norris (5-9), who gave up six runs as a starter in an 8-1 loss at Washington on Wednesday.

Seth Maness (1-2) picked up the win with a scoreless inning of relief for St. Louis, which was playing its longest game of the season.

Jedd Gyorko hit a two-out homer off closer Kenley Jansen in the ninth to tie the game 3-3.

Justin Turner and Howie Kendrick homered for the Dodgers. Los Angeles has lost four of six. The red-hot Turner has seven homers and 17 RBI this month. He hit two homers in a 6-3 win over Washington on Thursday.

Turner blasted his career-high 18th homer of the season off Seung Hwan Oh in the ninth to break a 2-2 tie.

Corey Seager had four hits and drove in the first run of the game. He had hit in seven successive at-bats before flying out in the ninth.

Kendrick’s solo shot in the sixth tied the game 2-2. He has hit in 14 successive games trying Colorado’s Charlie Blackmon for the longest current streak in the majors.

Los Angeles starter Brandon McCarthy allowed one hit and two runs over 6 1-3 innings, the longest of his four starts this season. He left with leg cramps. McCarthy struck out four and walked three.

St. Louis starter Michael Wacha allowed two runs on 10 hits in six innings. He struck out four and walked one.

Dodgers reliever Adam Liberatore recorded his 28th successive scoreless outing by retiring two of four batters in the seventh. He has not allowed a run in 41 of 42 appearances this season.

Minor League Players’ Wage Suit against Major League Baseball suffers a huge setback

The judge's gavel is seen in court room 422 of the New York Supreme Court at 60 Centre Street February 3, 2012. REUTERS/Chip East
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A judge handed minor leaguers looking to hold Major League Baseball liable for underpaying and exploiting them a huge setback today, ruling that the case cannot go forward as a class action. Minor leaguers who want to sue over their pay and treatment still can, but they’ll have to do it individually. The ruling saps the minor leaguers of their leverage, as Major League Baseball would likely be able to fend off individual cases which, by themselves, might only amount to several thousand dollars per claim.

The background: in 2014, former Miami Marlins player Aaron Senne sued Major League Baseball, Bud Selig, and three major league clubs claiming that minor leaguers are underpaid and exploited in violation of the Fair Labor Standards Act. He was later joined by former Royals minor leaguer Michael Liberto and Giants farmhand Oliver Odle. Eventually others joined and the suit had been expanded to 22 teams as defendants.

The upshot of the case is that, while the minor league season lasts only part of the year, players are required to do all sorts of things outside of merely playing games for which they are not compensated. Training, meetings, appearances and the like. When all of that time is added up, the players claim, their already low salaries are effectively far below minimum wage in violation of the law. Major League Baseball has countered this by claiming that minor leaguers are basically part time seasonal workers — like landscapers and pool boys — who are not subject to federal labor laws.

Last year the judge gave the case conditional certification, allowing the players to try to establish that it should go forward as a class action. This would streamline the case from the plaintiffs’ perspective and give them the power of collective action by asserting hundreds or more similar cases into one proceeding. The judge’s ruling today, however, was that the cases really weren’t factually similar and thus collective action was not appropriate because figuring out how many hours each player worked and what was required of him varied too greatly among the players.

From his order:

“The difficulties associated with determining what activities constitute ‘work’ in the context of winter training are compounded by the fact that there appear to be no official records documenting these activities. Because it may be impossible to determine from official records the types of conditioning activities in which the players engaged, membership in the state classes based on winter training would depend largely upon the players’ ability to remember, with a reasonable amount of detail, what they did during the off-season (often for multiple years and for many, several years in the past) to stay fit.”

The judge said that, in light of this, each case would be unique and would require “individualized inquiries” to find damages and liability. That phrase –“individualized inquiries” — constitutes magic words which sink would-be class actions. If a company overcharges all of its customers by $8 due to an error repeated a million times, it’s easy to look at one set of facts and judge them together. If you had to look at a million different wrongs, that’s no class action. And so it is not a class action for the players.

As many courts who have dealt with these sorts of cases have noted, for many plaintiffs, a class action is the only practical method of adjudicating Fair Labor Standards Act cases because individual plaintiffs are frequently unable to bear the costs of separate trials. They are, by definition, (allegedly) exploited workers. They’re not going to be able to pay legal costs and fight off a multi-billion dollar business in order to collect the few thousand dollars they were underpaid. At the same time, however, the defendants have rights too and, if the facts of each players’ treatment truly differ (e.g. the Yankees make their minor leaguers do more than the Brewers do) it’s not fair to bind one defendant’s defense to the acts of another.

So, where does this leave the players? Not dead. Not yet, at least. Their claims have not been dismissed on the merits. They have only been denied the right to act collectively. The individual plaintiffs can now file separate lawsuits against their former employers and Major League Baseball under the same theories. It would be harder to land a big blow in such a scenario, but if enough do, it could end up being death by a thousand cuts for the clubs and the league. Their legal fees might go up and, eventually, if they lose enough of these cases, more might be filed. There are a lot of former minor leaguers, after all, and once there’s some blood in the water, more of them — and their lawyers — may enter the frenzy. Decertification is certainly a win for the league right now, but it’s not necessarily a permanent win.

There are likewise some other quasi-collective forms this case could take such as multi-district litigation in which the cases, while individual, are coordinated in a loose fashion. That could lead to some efficiencies for suing players even if it’s not as robust as a class action.

We’ve written quite a bit about minor league pay and treatment in this space by now, so you probably know where we stand on it. We believe that minor leaguers are exploited and underpaid and we believe that Major League Baseball has been happy to exploit and underpay them for some time. Ultimately we believe that this state of affairs cannot and will not persist and that eventually, somehow, baseball will either see fit to pay its workers fairly or, more likely, will be forced to do so by a court or by collective bargaining of some fashion.

Today, however, was a big setback for the minor leaguers. Today’s ruling will give Major League Baseball and its clubs more time and more comfort in which to underpay them. There’s no doubt about it.