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Expert: A-Rod Likely To Swing, Miss On Appeal

Publication Date: 
January 19, 2014
Source: 
The Boston Globe - Sports
Author: 
Nick Cafardo

Professor William Gould weighs in on the likelihood of success for Alex Rodriguez's federal appeal for The Boston Globe.  

You won’t find a lot of legal experts who believe Alex Rodriguez will prevail in federal court on appeal, other than perhaps his own attorneys.

In fact, Stanford law professor William B. Gould IV , who served as chair of the National Labor Relations Board (1994-98) and has written books on baseball and labor, feels arbitrator FredricHorowitz probably didn’t need to reduce the 211-game suspension handed down by commissioner Bud Selig to 162.

Gould reasons that Horowitz made his determination because there was no precedent for a punishment that long. Gould argues that nobody had ever done what A-Rod did, either, just as nobody had ever done what Kermit Washington did when the former NBA player punched out Rudy Tomjanovich on the court in 1977.

Gould thinks A-Rod is sunk for two reasons. One, he never countered any of the charges made by Tony Bosch , Major League Baseball’s top witness and the man who ran the Miami Biogenesis clinic where Bosch alleges he injected Rodriguez with a variety of performance-enhancing drugs.

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”The ruling is a very careful professional job with detailed fact-finding and thorough consideration of applicable arbitral precedent,” Gould said. “First, the arbitrator laid out the testimony-supporting evidence in the form of not simply uncontradicted testimony of Bosch, but also notebooks, BlackBerry messages, not only noting drugs delivered, but also A-Rod’s instructions to erase messages telling Bosch, for instance, to use the service elevator to avoid watching eyes.

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Rodriguez and his legal team also insist the penalty should have been in keeping with a first-time offense. Not so, according to Gould.

”A-Rod argued that the penalty should be that set forth in the drug testing provision [50 games]. As I pointed out in Chapter 7 of ‘Bargaining with Baseball,’ drug offenses have long been handled under the just cause clause in the CBA — in the LaMarr Hoyt , Otis Nixon , Willie Wilson , and Steve Howe cases [the arbitrator invoked that clause] and others long before testing.

”The Anabolic Steroid Act of 1990 was incorporated in the CBA in the ‘90s. The drug testing clause began in 2003 setting forth its own sanctions, never affecting just cause as a basis for discipline. As the arbitrator held, each drug test failure constitutes a distinct violation — the failure of the test. Under just cause, A-Rod’s numerous violations, as well his attempt to conceal and cover up, were properly part of just cause.”

As for the reduction in the suspension, Gould reasoned, “One problem I have with the penalty is that while properly comparing it to Steve Howe, the arbitrator rejected 211 games because it was beyond what had been done. A-Rod, like say the Latrell Sprewell case in basketball, did things that no one else has yet been found to do. Selig’s 211 could have been easily upheld. But revision of the remedy is for the arbitrator . . . he is the expert the parties bargained for.”

That’s why Gould sees very little chance of a reversal in court.

”I would be surprised if the decision is reversed,” he said. “Since 1960, arbitration awards can only be reversed when the arbitrator decides on his own ideas of justice rather than the CBA or because of fraud, corruption or partiality. The merits are for the arbitrator, not the courts.

”Probably the arbitrator should have called Selig to the stand to avoid partiality, but that won’t be a basis for reversal on its own. As for the union, their obligation is to investigate A-Rod’s claim in good faith — they did so and took his case. And allowing his own counsel.”

As for A-Rod being upset because he didn’t have his hand-picked arbitrator involved, Gould said, “A-Rod has no right under the CBA to have his man on the three-man arbitration panel.”

Gould contends that while Rodriguez’s side feels MLB and the union were talking too much about the confidential case, he believes they were merely answering A-Rod’s public claims.

”[Former union executive director Michael ] Weiner shouldn’t have opined on the merits openly. But A-Rod was leaking and as the arbiter found, the confidentiality clause allows responses,” Gould said.

”I would be most surprised if A-Rod has a case versus either MLB or the MLBPA. Oh, he says that the union should have tried to enjoin the suit by MLB versus Bosch. But they would have been implicated in his coverup — and they have lots of baggage there. The duty of fair representation doesn’t oblige the union to do whatever A-Rod wants. They don’t even have to process his grievance.”

Gould went on to say that “the case reminds us how all the cheaters are ahead of the tests. Biogenesis and BALCO came to light because of newspapers. Sanctions were beefed up because of Congress. Unless baseball is willing to beat the bushes on the alert for future Bosches, it will be business as usual.

”Remember how Selig told told us when [ Mark ] McGwire partially confessed, ‘the steroid era is over’? Perhaps Selig’s successor will get religion, but it seems unlikely.”