December 9, 2013
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Sunday, August 04, 2013
Now that Major League Baseball has announced that it will suspend Alex Rodriguez on Monday, there are a host of questions that need to be answered.
Initially, it was reported that the Commissioner was planning to suspend A-Rod under the provisions of the Collective Bargaining Agreement (CBA), rather than the Joint Drug Agreement (JDA) in order to require him to serve the suspension immediately, prior to an arbitration hearing and award. The latest reports seem to indicate that the suspension will be under the JDA.
Had the Commissioner attempted to suspend Rodriguez under the provisions of the CBA, it would have created different wrinkles. The Joint Drug Agreement (JDA) provides that the appeal be completed prior to the suspension being served.
Initial reports had indicated that MLB and the Commissioner’s Office intend to suspend A-Rod from playing immediately, prior to the arbitration award under Article XII, Section A, of the CBA rather than the JDA. The problem for MLB is that the JDA covers just-cause suspensions as well as positive test result suspensions, among other violations.
Specifically, Section 7(G)(2) of the JDA provides for just-cause suspensions. Section 8(D)(1) of the JDA provides that suspensions are to commence on the third business day after the suspension is announced, unless the player or union files a grievance, in which case it is stayed until the arbitration award has issued. Because just-cause suspensions are expressly contained in the JDA, any argument that the JDA does not apply likely would fail.
There were also reports that MLB will instead use the Commissioner’s “best interests” disciplinary powers from Article XII, Section B of the CBA. That would have posed a problem for the union, not because of the language itself, or even the unilateral Commissioner authority “nuclear option” in Article XI(A)(1)(b), but because of how the union’s argument would be made on that issue.
A dispute over whether the suspension was under Article XII or the JDA would require bargaining history testimony about the meaning of the JDA and how it supplements and amends the CBA. Former MLBPA attorney Gene Orza has implied that the “nuclear option” in the CBA was negotiated to provide the Commissioner specific and unique powers in disciplining players for gambling.
But bargaining history isn’t a legal argument; it’s a finding of fact on the intent of the parties regarding that section of the CBA. There must be evidence in the form of witness testimony and documents for arbitrator Horowitz to find in favor of the union’s argument on this question.
The plain language doesn’t sufficiently support the union’s position. Therefore, it would be likely that a suspension under that section would commence even before the case is heard and decided. That is, even if the question of under which section the Commissioner may suspend Rodriguez is ultimately decided in favor of the union.
Moreover, there is no irreparable harm to A-Rod if the suspension goes into effect immediately rather than after the hearing, even if no discipline is the result. His damages are strictly financial. He can be made whole for any financial loss. Many people believe missing games is irreparable, but if that were the case, all suspensions would be stayed until the conclusion of the process. They are not. Only those under the JDA are stayed.
As an aside, normally the employer is judicious in discipline and discharge cases because of the risk of large back-pay awards. In this case, MLB has no skin in the game. If it loses, the Yankees—not MLB—have to pay A-Rod. While that may be moot given the deep pockets of MLB, it does make for an interesting situation that is quite uncommon.
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