Alex Rodriguez's baseball career and millions of dollars hinge on the decision of arbitrator Fredric Horowitz, who is charged with sorting through the evidence in the Yankees third baseman's appeal of the 211-game suspension imposed by Major League Baseball in the Biogenesis probe. A decision is expected by early January.
"I'm sure the arbitrator is going to be very careful about it,'' former MLB chief arbitrator George Nicolau said. "He's got a 12-day record to look over. He's going to have to go through it very carefully.''
Rodriguez stands to lose about $31 million before incentives if the suspension is upheld. He would not be eligible to return until 2015, when he turns 40. The chance of a federal court overturning the arbitrator's decision is considered slim, legal experts have said. Horowitz also could alter the suspension.
MLB acted after its Biogenesis investigation linked Rodriguez to allegedly receiving performance-enhancing drugs from the former anti-aging clinic in Miami founded by Anthony Bosch. During the appeal, Bosch emerged as MLB's star witness -- and the target of Rodriguez's defense team.
"I think the watershed moment in the case was Bosch's credibility going down the tubes,'' said Jordan Siev of Reed Smith, one of the firms representing Rodriguez.
"Make no mistake about it, Bosch is the case. Bosch and this supposed evidence of his. So if you don't believe Bosch, and Bosch is not a credible witness, then there's no case. You have to look at Bosch's testimony and Bosch's documents and determine whether those are credible.
"So what makes Bosch's testimony not credible? Well, the fact that he publicly said things much differently, the fact that he was sued by MLB, the fact that he had financial problems, the fact that he is under federal investigation and MLB has agreed to relieve him of all those problems gives him motivation to lie.''
Bosch's spokesman refused comment.
Siev continued, "The other evidence, the Biogenesis documents, we think we poked holes in those documents in terms of their authenticity and reliability and what they actually show. And those supposed BlackBerry messages which have tremendous, tremendous reliability and authenticity issues and frankly don't show anything about anything improper being used.''
The lawyers also impugned MLB's investigation, centering on allegations that it paid for stolen Biogenesis files received from a person of questionable character. Police in Boca Raton, Fla., have a continuing investigation on the theft of the files, a department spokesman said.
What will Horowitz accept and reject from the evidence and testimony? Doug Collins, an arbitrator in Los Angeles, said, "It's up to the arbitrator to make the determination as to whether the evidence being proffered is relevant and reliable. Purchased information from somebody is probably going to be, in most cases, to most arbitrators, hearsay and unreliable. It depends on the information. Getting at the truth does not mean relying on lies. The parties have burdens of proof. But they have to prove it by reliable evidence."
MLB did not deviate from its stance that Rodriguez's suspension was "based on his use and possession of numerous forms of prohibited performance-enhancing substances, including testosterone and human growth hormone, over the course of multiple years.'' Bosch was alleged to have supplied them in 2010-12. Siev said, "Was he meeting up with Bosch, was he getting treatments from Bosch, absolutely. Were they illegal? No.''
Rodriguez's attorneys also made an issue of commissioner Bud Selig's failure to testify. It precipitated Rodriguez's walkout the day before the defense rested its case. Former commissioner Fay Vincent said, "This is not a situation where 'I'm A-Rod and if I'm important and if I testify, I want the commissioner to testify.' A-Rod doesn't call the shots, the arbitrator calls the shots. It's not about what Selig wants or A-Rod wants, it's about what the arbitrator orders, and he's not going to order Selig to testify because he doesn't need him.''
Lead attorney Joe Tacopina has strongly suggested that the case will go to court if the decision does not favor Rodriguez. Vincent believes Horowitz's decision would not be challenged by the court, saying, "Once he decides, it's game, set and match. It's all over and there's nowhere for A-Rod to go . . . The attraction of arbitration is that it's final, and when it's over, you can't appeal to federal courts. They don't want the job. And they shouldn't take it and they won't."
Collins said Horowitz is well-prepared to handle the case, adding: "Fred is very experienced."