Alex Rodriguez's appeal of his 211-game suspension for violations of the Joint Drug Agreement and Basic Agreement related to the Biogenesis probe resumes Monday. Rodriguez's attorneys will try to convince chief arbitrator Fredric Horowitz to overturn the unprecedented penalty Major League Baseball imposed on the Yankees third baseman.
His legal team, a source said, hopes to demonstrate that Rodriguez's credibility outweighs that of MLB's star witness, Anthony Bosch, the Biogenesis founder who MLB said supplied performance-enhancing drugs to Rodriguez and other players.
They also will hope to prove, through a long witness list, that MLB employed dubious tactics in its investigation of Rodriguez, who received the longest suspension of those disciplined in the Biogenesis probe. The witness list, a source said, will include MLB investigators.
Commissioner Bud Selig's name reportedly is on the list, though it is unlikely MLB would agree to let him testify. Rodriguez's lawyers also will continue to discredit files introduced by MLB that allegedly notated Bosch's sale of illegal substances to Rodriguez. MLB has said it bought the files from former Biogenesis employee Gary Jones. The files were reported stolen from a vehicle driven by Biogenesis whistle-blower Porter Fischer when he and Jones were in a Florida tanning salon.
MLB repeatedly has said it had no knowledge that the files were stolen. Police in Boca Raton, Fla., are investigating. A source also said Rodriguez's attorneys found issues authenticating that the files originally belonged to Bosch. Rodriguez's attorneys have tried to discredit Bosch as someone who provided illegal substances to minors.
But Bosch's character might not necessarily render his testimony invalid, said Roger Abrams, who arbitrated cases in MLB and is a law professor at Northeastern.
"There are bad guys around,'' Abrams said. "Bad guys sometimes tell the truth. If they tell the truth, the arbitrator must value the truth.''
If Rodriguez's attorneys determine it will help the case, he will testify. This past week, a source said Rodriguez will deny using PEDs during the period covered by MLB's investigation. Rodriguez's team has said their client used Bosch as a "consultant.''
Rodriguez would have to meet with MLB officials for an interview before testifying. That was supposed to occur Friday, but Rodriguez was said to be sick at his home in California. The source said the meeting has not been rescheduled.
Manhattan criminal defense attorney Todd Spodek believes Rodriguez should testify.
"By putting Mr. Rodriguez on the stand, you're giving him an opportunity to tell his story from beginning to end,'' Spodek said. "And that's going to provide a narrative that lawyers aren't able to do on their own, no matter what . . . Here he can differentiate himself from all the other players with the length of suspension, how they've sort of singularly attacked him and focused their investigation on him, and I think he could provide a broader picture than the attorney can without his testimony. I don't see the negative side from testifying in this . . .
"[Arbitrators] are looking to see, who do we believe? Alex's side has put forth its case of MLB and their egregious investigatory practices. That they pigeonholed Alex and singled him out. So now Alex can take the stand, look these three gentlemen in the eye and say, 'I've never done this, I have not done anything wrong.' ''
Regardless of whether A-Rod testifies, former chief arbitrator George Nicolau says it could be difficult for MLB to have the entire suspension upheld.
"The league has to prove there's been some violation of the collective-bargaining agreement or the commissioner's policies,'' he said. "A-Rod has got to try and refute that, but even if it were proven, there's an issue as to whether that penalty is too severe. It's not anywhere near what other players have received . . . Even if anything is proven here, you can't penalize a player that much because it is not consistent with any of the precedents in this industry.''