The authority of the commissioner's office -- and Bud Selig's legacy -- could be impacted when arbitrator Fredric Horowitz ultimately rules on Alex Rodriguez's appeal of his 211-game suspension for violations cited in Major League Baseball's probe of Biogenesis.
The hearing, which is expected to last several sessions, is scheduled to begin Sept. 30 if Rodriguez's Yankees do not make the playoffs.
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Former commissioner Fay Vincent learned the limitations of the office in 1992 when he banned pitcher Steve Howe for life after the pitcher's seventh suspension for drug-related issues. However, arbitrator George Nicolau overturned the ban.
"There were [seven] drug violations and I threw him out for life,'' Vincent said recently. "I felt I was totally on secure ground. I didn't think a rational person could possibly disagree.''
Gene Orza, then the associate general counsel of the Major League Baseball Players Association, argued during the appeal that Howe had suffered from attention deficit disorder since childhood. Vincent called it a "preposterous theory, but it was novel and new and interesting and, by God, the arbitrator fell for it."
Vincent compared the A-Rod appeal to Howe's. "If Rodriguez wins on a similarly ludicrous appeal, I don't believe that hurts baseball or Bud,'' he said. "If, on the other hand, he wins the appeal because baseball's done a bad job, the investigation was sloppy, there are other legal or factual defects, that's an entirely different matter. I don't think you can generalize about these things because you have to know what the decision is based on.''
Nicolau said his decision on Howe, a former Yankee who died in 2006 after years of cocaine and alcohol abuse, was based on testimony from a leading expert on ADD and, beyond that, Vincent's failure to follow recommendations that Howe should have been regularly tested. "It certainly is not preposterous,'' Nicolau said of his ruling. "I was ready to prove him correct if the facts justified it. In my view, they didn't. The commissioner will never forgive me for it, but I rest easy with that decision.''
Orza, now retired, said, "Baseball has traditionally imposed a discipline greater than arbitrators have found to be permissible. I believe it is conscious on their part. They know they will be curtailed back to a more reasonable amount, but at the same time, they don't lose anything. They gain the ability to go out in the public and say, 'See how tough we are, this is what you want us to be.' There's no downside to overreaching.''
Orza would not comment directly on the Rodriguez case other than to say, "I'm concerned with what Major League Baseball has done. It's obvious to me, 211 games is ridiculous, totally absurd.''
Vincent said Selig could have invoked the "best interests of baseball'' clause and banned Rodriguez, which had been speculated during the probe, but understands why he did not. "Doing the best interests and saying out for life a la Steve Howe has its legal risks, as I found out. It's a close call. This is at the end of Bud's career. This is a very important issue for him. I think it's important for him to be very clear that he wants his legacy in baseball to be very firm on the anti-drug, anti- chemistry side, and I think he feels that way strongly.''
Northeastern professor Roger Abrams, a sports and labor law expert, said Selig has plenty riding on the outcome: "If it was totally thrown out, he'd be embarrassed and the whole program would be rendered a mess. Which means that's not going to happen.''
Even a decision that reduces the suspension, perhaps cutting it in half, would not be sufficient to save Selig's legacy, Abrams said: "That's a loss, a significant loss for Selig.''
Andrew Zimbalist, sports economist and author of "In the Best Interests of Baseball? The Revolutionary Reign of Bud Selig,'' doesn't foresee a loss for Selig. "I don't think the commissioner's office loses face here if A-Rod gets a reduced suspension,'' he said. "They've done what they think is right. They've taken a strong stand. They gave him a stiff penalty. That's strong PR value for them. If an arbitrator reduces it or reverses it, that's up to the arbitrator.''