211 games?by Eugene Freedman
August 07, 2013
Monday, Commissioner Bud Selig proposed suspension of Alex Rodriguez for 211 games, or the remainder of the 2013 season and all of the 2014 season for multiple allegations of misconduct. The reason I say "proposed suspension," rather than "suspended," is because under the Joint Drug Agreement (JDA) between MLB and the Major League Players Association, the suspension doesn’t begin until three days after it is announced. ARod's appeal stays implementation of the discipline until the arbitrator's award is issued.
Selig’s announcement stated:
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.
As Wendy Thurm wrote on FanGraphs Monday, “we don’t know how he reached 211 games.” What we do know, as I’ve written before, is that MLB bears the burden of proof that the misconduct occurred and that the discipline is reasonable and appropriate for that misconduct, both by a preponderance of the evidence. If the penalty is already contained in the CBA, MLB only has to prove the charged misconduct took place, but several provisions provide for a range of suspensions or no fixed period.
Therefore, where the charges are proven or admitted, the arbitrator must follow the JDA’s outlined penalties. Where there are no specific penalties, MLB must prove that the penalty is appropriate for the misconduct and the arbitrator has the authority to mitigate that penalty.
While some have complained that the JDA is not clear enough regarding penalties, it is quite uncommon for employers and unions to agree to a table of penalties in advance. While employers usually have decision rules and guidelines for penalties for certain offenses to guarantee some degree of consistency, those are unilateral systems. Often, unions still argue for mitigation at arbitration based upon a host of other factors even if the penalties are consistent.
In the current case, MLB is charging A-Rod under the "use and possession" provisions in Section 7(A) of the JDA. That provision carries a 50-game suspension for first-time violations, 100 games for second offenses, and a lifetime ban for third offenses. It does not distinguish between the analytic and non-analytic violations that some writers seem to be dwelling upon still. Except for the difference in how MLB must prove use or possession, there is no difference under the JDA.
While MLB cites “numerous forms… over multiple years,” this is the first time MLB has charged A-Rod with a violation of the JDA. All the other players involved in the Biogenesis investigation, save Ryan Braun, were presumably suspended solely relying on this same provision and elected not to challenge it. Similarly, Bartolo Colon and Melky Cabrera, among others, have accepted 50-game suspensions in the past without appealing to arbitration when they have tested positive.
Based upon a host of statements, including union executive director Michael Weiner’s comments on Chris Russo’s radio show, it is unlikely that the union will dispute a first-offense use charge.
It is a well-established and generally accepted concept in disciplinary arbitration that penalties for similar conduct must be exercised in a consistent manner. While MLB bears the burden of proving the use or possession, depending on how the 211 games are allocated among the charges, A-Rod could assert an affirmative defense of discrimination. If he raises that defense, he bears the burden of proof that he was treated differently and that his situation was substantially similar to the other players who received 50-game suspensions. Perhaps MLB is citing multiple substances over multiple years because it intends to charge him with a second separate offense, requiring 100 games.
As I wrote before, A-Rod’s past history of non-positive tests is exculpatory evidence. While blood testing for Human Growth Hormone is new in the JDA, testosterone has been included for some time. In fact, it’s exactly what several of the previously suspended players tested positive for. And, it’s what Braun tested positive for in the case of his overturned suspension.
If MLB is pursuing a second-time violation for “use or possession” it will have a hard time justifying anything more than the first-offense 50-games to the arbitrator without significant separately obtained evidence from a whole different time period. MLB is apparently not charging A-Rod under the provisions of distribution or sale as previously reported by many sources. That would have been a tenuous charge because giving the name or phone number of a drug dealer to someone who is going to purchase drugs does not constitute distribution of a controlled substance under state or federal law. That means that MLB’s sole charge under the JDA is use or possession.
Then, there are the charges of attempting to cover up, obstruct, and frustrate the investigation. Those charges have no specific penalty attached, so it is whatever MLB can prove is reasonable and appropriate considering the nature and seriousness of the misconduct. But, again it runs up against any number of issues.
Melky Cabrera’s fake website might be considered worse, depending on what evidence there is against ARod. That resulted in no additional discipline. Braun may not have attempted to cover up, but his lack of candor, by refusing to answer any questions during the investigation, was definitely an attempt to frustrate the investigation. It resulted in 15 additional games beyond the 50-game suspension for first-time violators.
Even if MLB is pursuing 100 games under the JDA, an additional 111 games for the second series of charges appears to be a significant overreach given MLB’s prior discipline for what appear to be substantially similar matters.
Then there is the issue of the arbitrariness of the 211 games itself. Craig Calcaterra summarized this well when he wrote, “if it happened last week he’d get 217 games? If it happened next week he’d get 205? For the same conduct? It speaks to an unreasonable standard of discipline, even if it happens to go after unreasonably bad behavior.”
Finally, there is the issue of timing. I had previously written that I thought these cases should be heard in the offseason. That was when there was a possibility of 20 or more individual cases. Now, there is only one. But, some of the same concepts still apply.
It will take some time to schedule because of the arbitrator’s prior commitments as well as the schedules of the parties. The hearing itself will likely take five days. Because there are some legal concepts as well as testimony and documentary evidence, I would expect that briefs will be submitted, either at the election of the parties or by request of the arbitrator. Submission of briefs won’t occur until 30-60 days after the transcript is received. Then the arbitrator will deliberate and write his decision before issuing it. That could take another 30-60 days depending on his prior commitments.
Although I’ve heard several radio personalities reference Horowitz as a first-time arbitrator, that is far from the truth. He’s been a full-time arbitrator for almost 25 years across many sectors including airlines, entertainment and the public sector. He would not have been selected as the parties’ sole arbitrator if he were not preeminent in the field.
As I wrote Sunday, I expect the party least satisfied with the decision to terminate him after the case. While I expect this to be his one and only case for MLB and the MLBPA, that will not affect the way he handles the case. My experience is that arbitrators consider their integrity more important than almost anything else—it’s their reputation that gets them their future appointments. A fair, impartial arbitrator who issues a well-reasoned decision and is terminated by the losing party is far more likely to be hired by others than someone who issues poorly reasoned decisions attempting to balance wins and losses.
Evaluating this case from a position mostly in the dark, I’d put a reasonable expected range of outcomes anywhere from 65 games to 125 games. My best estimate would be more like 75-80 games.
While cases frequently settle prior to hearing and some settle even while the decision is pending, it appears that the commissioner is dug into his position presently. I can’t see him settling for less than what he has proposed.
Eugene Freedman is Deputy General Counsel for a national labor union. He received a degree from Cornell University in Industrial & Labor Relations and his law degree from University of Maryland. Follow him on twitter @EugeneFreedman.