So many hearings, so little timeby Eugene Freedman
July 11, 2013
Another leak sprang from Major League Baseball the other day about its plan to suspend more than 20 players for alleged links to a reputed performance-enhancing drug distributor firm Biogenesis. This time, the news is that baseball will be ready to announce its suspensions shortly after the All-Star Game. Last column I discussed why the disciplinary case against players without a positive test would be difficult. This time I delve into the logistical aspects of the discipline cases. I hope to tackle baseball’s proof requirements in my next piece.
The Joint Drug Agreement (JDA) between the clubs and the Major League Baseball Players Association says that all grievances filed over discipline go automatically to arbitration. The arbitration panel is really just arbitrator Frederic Horowitz making the decision with a member of the panel from the clubs and one from the union who will either concur or dissent from the arbitrator’s written ruling by signature line alone.
Under the JDA, a hearing is to be convened as soon as practical, and absent good cause, no later than 20 days after the grievance has been filed. But, if there are more than 20 grievances from players, all with different facts, testimony, and cases against them, it may be impossible for all the cases to be heard that quickly unless MLB staggers its discipline and issues suspensions piecemeal rather than against all of the players at the same time. That appears unlikely.
The cases could conceivably be consolidated, but that would have its own hurdles. Consolidation would mean that MLB would have to make individual cases against each player (more on this in the next column) and each player would each have a right to make a separate defense. The findings would all be individualized, complicating the decision as well.
Moreover, each player has the right to attend the hearing, which are almost exclusively held in New York City. Most grievances are heard when the player’s team is scheduled to play the Yankees or Mets or another team within a short distance. But, with more than 20 players allegedly on the list of those to be suspended, it’s logistically impossible for them all to attend at the same time using the normal procedures.
Also, if the cases are consolidated, it would mean that the hearing would be more than the normal two-three days in complex discipline cases. It would likely be a multi-week hearing. If the players attend the hearing, that will constitute a great loss of time from their teams, something that might cause individual clubs to object. Realistically, these cases are much better suited to take place after the season has concluded. While this would delay any proposed suspension, it would also appease the clubs that don’t want to lose a player for a multi-week hearing if his grievance is ultimately sustained.
The JDA also provides that the panel chair try to issue a decision within 25 days of the opening of the hearing, following in writing within 30 days. If this turns into a multi-week hearing with more than 20 cases argued, it would be very difficult for Horowitz to issue decisions that quickly. Even holding one hearing every few days until all were completed would mean that he would not have an opportunity to review the evidence, deliberate and decide the first case until the final case was concluded.
Having one grievance arbitrator helps the parties because some of the redundant evidence and general witness testimony would not have to be duplicated in matters that would pertain to all the players, but it definitely creates a bottleneck.
It should be noted that these jointly agreed-to time frames are only guidelines. It is impossible to force a neutral third-party arbitrator to issue a decision within a certain time frame. Arbitrators want to get their decisions correct and write well-reasoned decisions. More frequently than not, that means they will issue their decisions long after the contractually agreed upon deadline.
Additionally, Horowitz is not on call to MLB and the MLBPA. He has other cases. While it is sometimes possible to expedite a case with a top-flight arbitrator into a schedule gap, it’s impossible to get an arbitrator to clear his calendar for upwards of a month without significant advance notice.
Another logistical aspect is the arbitrator’s tenure. Immediately after arbitrator Shyam Das issued his award in the earlier Ryan Braun case, MLB terminated him. Either party may unilaterally terminate the arbitrator at almost any time, but not after the case has begun to be heard. Once a case begins with Horowitz, he’s got it until the end. That means neither party would be able to terminate Horowitz based upon an early-issued decision.
Because termination of an arbitrator is a contractual issue, that decision itself can be appealed to arbitration. Decisions in those cases generally enforce the terminated arbitrator’s authority to hear the case to completion and issue a final and binding award. This likely requires that all of the decisions be issued on the same day or very close together in these suspension cases. Doing so prevents potential for headline grabbing termination and further litigation.
One might also wonder whether an arbitrator is likely to sustain some grievances and deny others in an effort to please and offend both parties, so as to retain employment. 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.
Further, many of the arbitrators I have worked with enjoy telling their termination stories more than any others. Being fired is almost a badge of honor.
Finally it’s important to note that arbitrator decisions almost never can be appealed. The U.S. Supreme Court has established deferral to arbitration for labor-management grievance cases under a collective bargaining agreement. That means that both parties must use the negotiated grievance arbitration process and cannot sue each other over these matters. And, they can appeal a decision only if it does not draw its essence from the collective bargaining agreement. Any appeal on that note would be frivolous given Horowitz’s pedigree.
It’s likely the clubs and the union are discussing these logistical aspects right now. But it’s also possible that there will have to be a preliminary hearing arguing some of the procedural aspects before Horowitz even before the grievance hearing or hearings can be scheduled.
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.