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Experts weigh in on Alex Rodriguez's options

Yankees third baseman Alex Rodriguez prepares his bat

Yankees third baseman Alex Rodriguez prepares his bat for batting practice before a game against the Boston Red Sox. (Sept. 5, 2013) Credit: Kathleen Malone-Van Dyke

Could the A-Rod saga turn into a federal case?

Alex Rodriguez was suspended by Major League Baseball for 211 games on Aug. 5 in connection with his link to the Biogenesis anti-aging clinic. Under MLB's Basic Agreement with the players' union, he was allowed to play pending an arbitration hearing before Frederic Horowitz, who can uphold, alter or nullify the suspension.

As Rodriguez awaits the Sept. 30 hearing, there has been speculation that his legal team could attempt to override the MLB process by seeking a restraining order in federal court before the hearing on the basis that it could be unfair to Rodriguez, or a suit afterwards seeking to nullify the decision.

Rodriguez's attorneys are not discussing strategies and MLB has refused to comment.

"Just filing the suit is going to trigger a response, discovery, various things that are going to delay the process,'' Manhattan criminal attorney Todd Spodek said. "If they bring some sort of preliminary action, that will automatically stay the arbitration until the lawsuit is filed. Litigation is a cesspool of delays.''

However, whether a judge accepts the argument that the process is potentially flawed before it even begins "is climbing Mount Everest,'' said Washington, D.C., attorney Stanley Brand, who in 2005 represented MLB in connection with the congressional investigation into the sport's steroid policies.

"What courts generally say is that when parties agree to consign themselves to arbitration absent some overriding constitutional interest or claim, they are going to consign the parties to arbitration,'' Brand said. "It's a Hail Mary. I don't think it works.''

John Furlong, a criminal attorney based in New Jersey, said an argument still could be made by Rodriguez's lawyers saying, "Judge, we are about to suffer irreparable harm if this administrative process goes forward. It is fundamentally unfair.''

A potential argument in seeking an injunction could be MLB's history of firing its arbitrator after what it considered unacceptable rulings, such as the dismissal of Shyam Das -- Horowitz's predecessor -- after overturning the initial suspension of Ryan Braun.

"I guess you could make the argument that it really wasn't an impartial arbitrator if he is subject to being discharged from future arbitrations,'' said Frank W. Bullock, former chief justice of U.S. District Court in North Carolina. Bullock said federal judges are reluctant to interfere with the arbitration process.

The other option for Rodriguez is to go through the arbitration process and then seek relief in the courts if his representatives disagree with the ruling, which Horowitz has 25 days to deliver. But the courts generally have let arbitration decisions stand.

"Unless there is fraud, refusal to admit evidence, even if the arbitrator gets the law wrong, it's pretty extraordinary to have any decision reversed,'' Washington, D.C. litigator and arbitrator Donald J. Friedman said. "That's not to say that people don't regularly try. They do, because that's the nature of people.''

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