Odds against Alex Rodriguez being granted injunction

Long Islanders talk about the recent decision to shorten Alex Rodriguez's suspension to 162 games. The Yankees third baseman, 38, was suspended in August after being implicated in the MLB probe of performance-enhancing drugs. Videojournalist: Jessica Rotkiewicz (Jan. 11, 2014)

Now facing a 162-game suspension, Alex Rodriguez will need a court-ordered injunction to play in a regular-season game this season. That first crucial step of the legal process might be the most difficult one as his attorneys head to federal court. Attorney Joe Tacopina has indicated the filing will come Monday.

Legal observers say Rodriguez's attorneys must convince the court that the arbitration process was flawed. Arbitrator Fredric Horowitz issued the suspension Saturday, trimming 49 games from the 211 imposed by Major League Baseball last August after the completion of its Biogenesis investigation into performance-enhancing drugs.

"Here's the bottom line," New Jersey attorney Jack Furlong said Sunday. "Courts are congested, overworked, underfunded and constantly looking for ways to control their docket. Nothing helps control civil litigation in the civil court system more than private arbitration agreements. Private arbitration agreements that are duly negotiated in labor contracts have the highest due process currency among all arbitration agreements."



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Tacopina, who was not available for comment Sunday, likely will tell the court his client was denied due process in the appeal hearing. The talking points are expected to include the arbitrator's failure to have commissioner Bud Selig testify, the testimony of Biogenesis founder Anthony Bosch, who will be attacked on his credibility, and MLB's payment to an individual for Biogenesis-related documents, which MLB chief operating officer Rob Manfred confirmed on "60 Minutes'' Sunday night.

Furlong said that before issuing an injunction, a judge would consider, among other factors, Rodriguez's likelihood of success on the merits of his case and whether he'd suffer irreparable harm if the stay is not granted.

Furlong said fraud is the hallmark reason for overturning or reviewing decisions rendered through collectively bargained arbitration agreements. No one seems to be alleging that. Still, there is the chance of an injunction, Manhattan criminal defense attorney Todd Spodek said.

"I think that's still a stretch, but it is possible,'' he said. "Getting it overturned, I don't think it's going to happen. They need to tell the court this is an emergency, that this judge needs to review the full case file and that it's highly prejudicial to A-Rod so they need to stay the order until the federal court could review the arbitrator's full file, transcripts, everything. But to actually overturn it, they are going to have to show that something particular with these proceedings was so biased, out of the ordinary course of arbitration."

Should the judge see merit in that argument and issue a stay, MLB likely would appeal the ruling. At that point, the slow wheels of justice could help Rodriguez, Spodek said.

"MLB's going to respond that arbitration is binding," he said. "This is a full and final hearing. There's nothing in the record at all that's going to show any sort of prejudice or anything unusual and ask that they keep the arbitration ruling in effect while the legal process and perhaps an appellate process goes on. This immediate part is very quick, as far as the stay and decision about that. General federal civil litigation, especially on an appellate level, is not quick at all.''

Spodek thinks the stay request could be aided by Rodriguez's existing suit against MLB, which claims it is on a "witch hunt" to drive him from the game.

"They are going to connect it and say, 'Judge, you have to stay this decision because not only was the arbitrator's ruling totally biased, totally out of the ordinary, but also we have this supplemental case in which we have direct evidence that people were paid off, there were criminal acts committed and this and that.' "

If an injunction is not granted, the case can proceed, but it would not enable Rodriguez to play as it winds through court.

"The case can go forward on a slow-boat basis with discovery and everything else and it will just go on," Washington attorney Stanley Brand said. "It's injunctive relief or nothing for him, I think."

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