With Alex Rodriguez facing a suspension that would keep him off the field for the entire 2014 regular season and postseason, lead attorney Joe Tacopina likely will ask a federal court judge to set aside the decision or issue a stay until the court can hear arguments on the matter.
Rodriguez made his intentions known Saturday in a statement after the ruling by arbitrator Fredric Horowitz was released by Major League Baseball.
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"I have been clear that I did not use performance-enhancing substances as alleged in the notice of discipline, or violate the Basic Agreement or the Joint Drug Agreement in any manner, and in order to prove it, I will take this fight to federal court," Rodriguez said. "I am confident that when a federal judge reviews the entirety of the record, the hearsay testimony of a criminal whose own records demonstrate that he dealt drugs to minors, and the lack of credible evidence put forth by MLB, that the judge will find that the panel blatantly disregarded the law and facts, and will overturn the suspension."
Horowitz has said he will not publicly discuss his decision, though it is likely that his findings will become part of the record if Rodriguez proceeds with the suit.
Legal observers believe pursuing the matter will be a difficult task because the arbitration procedure in collective-bargaining agreements in all industries is highly respected by the courts. Even a person who is sympathetic to Rodriguez's situation said there are "limited and delineated grounds for the appeal of an arbitration order. You just can't go in and say you don't like the decision. Any time you lose an appeal, you're fighting an uphill battle."
Manhattan labor attorney Dan Silverman, who has engaged Major League Baseball in court action, spoke about the process before Horowitz announced his decision. "Even though the federal court might say the number is too high, they're not going to get into it," he said. "That decision is final and binding, and it's very difficult to overturn it unless you can show some fraud or some lack of due process."
Silverman said it does not matter if the court does not agree with the arbitrator's decision. "That's not going to carry the day," he said. "Courts have enforced arbitration awards with very little rationale whatsoever. Justice [William O.] Douglas said in 1960, 'Even the most sophisticated, intelligent judge is not as good as an arbitrator who's familiar with the work practices of the shop.' "
Retired Massachusetts federal judge Nancy Gertner said, "The law is very much against a person trying to challenge arbitration. The burden of proof is against you; the presumption is in favor of the arbitral decision. That said, it doesn't mean that there aren't sometimes arbitration decisions that are set aside, but that's not an easy thing to do."
To set aside an arbitration, it must be found that the arbitrator was biased in some way, that the arbitrator prevented the parties from getting meaningful discovery, that there was something wrong with the process or that the arbitrator used the wrong law or ignored the law that existed.
"You really are talking about things that go to the integrity of the process," Gertner said.
One of the main arguments Rodriguez's attorneys are expected to make will center on Horowitz's decision not to have commissioner Bud Selig testify during the appeal process. Manhattan criminal defense attorney Todd Spodek said, "Although they should have proffered [Selig] as a witness, that's a procedural issue for the arbitrator. The [arbitrator] could have said his testimony would have been duplicative, undue burden, and he understands the position they've taken through other witnesses."
Still, Spodek said it does not hurt for Rodriguez to give court a try.
"Some clients are in a position to fight to the end, and for whatever reason, they want to, whether it's connected to a probable outcome or not," he said. Seeking a stay, Spodek added, "buys time. It keeps A-Rod's position, 'They're all out to get me,' and you would think that if that's the case, he would fight to the end. He wouldn't just fold and accept something."