ARod, the JDA and the CBA

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.

All that said, MLB appears to have abandoned both Article XII(B) and Article XI(A)(1)(b) as justifications for immediate suspension and/or no-appeal rights, and rightly so. As I’ve explained in several places, the JDA and its penalties are expressly contained in the CBA. If there is a dispute as to which section of the CBA/JDA applies, the arbitrator is going to make that determination as a contract interpretation grievance.

The arbitrator also would make the determination regarding his own jurisdiction if the commissioner invoked the “best interests” clause and attempted to circumvent arbitration. Ultimately, the fact that the JDA covers offenses, penalties, and the appeals process would undermine MLB’s argument, potentially putting the entire discipline in jeopardy.

I expect the hearing to commence relatively quickly and for it to last upwards of five days. It’s likely that arbitrator Horowitz will be on the phone with both parties Monday dealing with scheduling and procedural matters.

As I’ve written before, MLB bears the burden of proof regarding 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 of no fixed period.

There is no requirement for briefs in the Appendix A of the CBA covering the hearing procedures, but it is likely that the arbitrator will request them even if the parties do not, given that there likely are to be legal as well as factual arguments that will be made.

It will be interesting to read the charges once they are leaked. Similar offenses require similar penalties. If MLB is truly pursing a suspension of the entire 2014 as well as the remainder of 2013, it far exceeds the penalty imposed on any other player. First use requires a 50-game suspension. MLB and the union appear to have agreed to that penalty contained in the JDA for all or nearly all of the other players implicated in Biogenesis.

The JDA also contains a provision for an 80-to-100-game suspension for distribution or sale of PEDs. I have a hard time believing that providing Biogenesis’ contact information to other players constitutes distribution. Even so, 150 games is not 214 games.

Ryan Braun agreed to an additional 15 games because of his failure to cooperate in the investigation. Melky Cabrera engaged in an attempted cover-up of his positive test, yet he received no additional suspension beyond the 50 games. MLB appears to be overreaching.

As I’ve repeatedly stated on Twitter, we don’t have all of the information, and we likely never will. The only parties privy to it are the individual players, the union, and MLB. Having that information was sufficient to resolve the vast majority of cases.

Unions frequently advise members to accept discipline when the evidence is very strong against them and the penalty is reasonable. In this situation, some have taken this to mean that the MLBPA is now weak. I see it as pragmatic. But in the case of Rodriguez, it appears MLB was intent on overcharging him and overreaching on the penalty.

So, we are where we are today: headed to arbitration. It doesn’t mean that the parties won’t settle before the final award, but given the reports that the Commissioner is taking this personally, it is unlikely. The best counsel can never overcome an irrational client.

Regardless of the outcome this case, it is likely arbitrator Horowitz’s last for MLB and the Players Association. Whichever party is least satisfied with his decision likely will dismiss him.

The difficulty would come if either party tried to dismiss him after a procedural ruling rather than after the issuance of a final award. Because termination of an arbitrator is a contractual matter under the CBA, the next appointed arbitrator would hear the case about Horowitz’s dismissal, filed by the party not desiring to terminate arbitrator Horowitz mid-case. And, that second arbitrator would no doubt reinstate Horowitz to hear the remainder of the A-Rod case.

Finally, it should be noted that Rodriguez will not and should not sue MLB, nor should MLB or the Yankees sue him for violating his player contract or in an attempt to void his contract. While there are people suggesting any number of lawsuits, including injunctive and/or declaratory relief, these suits would be dismissed. These are matters to be dealt with under the CBA’s negotiated grievance procedure.

The United States Supreme Court decided a series of cases known as the Steelworkers Trilogy in 1960. In those cases, the Court decided that all disputes regarding matters related to or covered by the CBA must go to grievance arbitration and cannot be heard in the courts. This covers discipline and termination of contracts, and The Supreme Court also greatly restricted judicial review of arbitral awards.

Moreover, the JDA strictly prohibits individual clubs from taking action against players for violations of the drug policy. It vests exclusive power with the Commissioner.

Whatever arbitrator Horowitz’s decision is in this case, as long as it draws its essence from the CBA, it is final and binding and not able to be appealed.