Alex Rodriguez and the Last Chance Saloon

Winslow Townson

With the arbitrator's ruling yesterday, he's running out of options and time.

Alex Rodriguez will be banned from Major League Baseball for the entire 2014 season (and post-season), based on yesterday’s ruling by arbitrator Frederic Horowitz. While Horowitz reduced MLB’s original suspension of 211 games to one season, he handed MLB a huge victory over the centerpiece player in the Biogenesis scandal. Consider that MLB levied 14 suspensions as a result of Biogenesis, including two (Ryan Braun and A-Rod) that were longer than the 50-game suspension set forth in the Joint Drug Agreement for first-time offenses. While none of these suspensions was based on a positive test, to this point, none has been successfully challenged.

This is consistent with the terms of the JDA, which expressly mandates suspensions for positive drug tests, but also gives MLB the authority to suspend a player based on circumstantial evidence. In addition, the Basic Agreement between baseball and the Players’ Association (Article XII(B)) authorizes the Commissioner to impose an additional suspension where a player engages in "conduct that is materially detrimental or materially prejudicial to the best interests of baseball including, but not limited to, engaging in conduct in violation of federal, state or local law." MLB exercised these powers when suspending Ryan Braun and A-Rod (two players who were first-time offenders for purposes of the JDA) and, in both cases, the use of that power has stuck.

Now that the arbitrator has confirmed MLB's authority, some fear MLB will use it to conduct Javert-like investigations and suspend players on a whim. Others, like Ken Rosenthal, wonder if organized baseball, flushed with victory, will use its big win to strong-arm the Players Association in the next round of collective bargaining set for 2016. More likely, MLB will use its newly-confirmed authority not to deal with scandals it ferrets out itself but, as in the case of Biogenesis, to deal with scandals that land on its doorstep through a media report. And as for any collective bargaining leverage, Rosenthal’s concern assumes a tension between baseball and the union where none existed: as made clear by the Players Association’s tepid press release yesterday, the union wants nothing to do with A-Rod or the Biogenesis fight. Collective bargaining may seek to clarify (or codify) baseball’s authority to suspend without a positive test, but that’s it.

What, then, comes of A-Rod? He’s currently suspended from the 2014 season, but he’s under contract for 2015–17, so still has three more years in pinstripes. Some have mused that the Yankees may try to litigate their way out of A-Rod’s final three years, seeking to negate his contract on grounds that it was entered into fraudulently. For a variety of reasons (including that a lawsuit would put the Yankees’ knowledge, if any, of A-Rod’s pharmaceutical proclivities directly at issue), a lawsuit is unlikely.

Instead, exile will be the Yankees’ preferred choice in the short term. The Yankees don’t have to pay A-Rod for 2014, which clears salary space to potentially acquire Masahiro Tanaka or, perhaps, achieve Hank Steinbrenner’s goal of getting out of the luxury tax. In addition, the suspension authorizes the Yankees to remove A-Rod from the 40-man roster. While A-Rod channeled his inner Eisenhower yesterday and pronounced "I will go to Spring Training," as a player off the roster, A-Rod’s spring training could be in the minor league camp, not with his former major-league teammates.

Can A-Rod get out from underneath the suspension? He’ll certainly try, appealing the arbitrator’s decision to the federal courts. These appeals, however, are extremely difficult. Courts favor the finality of the arbitration process, so to successfully challenge an arbitrator’s decision, A-Rod must show fraud or malfeasance, or complete disregard for the law. The focus of the court’s review, then, is on the legitimacy of the process, not re-hearing the underlying dispute. Given the allegations in his currently-pending lawsuit, as well as his statement yesterday crying foul, A-Rod will claim "the deck has been [fraudulently] stacked against me since day one."

A lawsuit, however, will take time that A-Rod doesn’t have. He wants to play now, which means seeking a court-ordered injunction / restraining order to prevent MLB from enforcing its suspension. This is almost certainly unlikely to succeed. Injunctions require, among other things, a showing that the aggrieved party will be "irreparably harmed" unless the court acts. The harm has to be actual, not speculative, and it has to be a kind of harm that can’t be compensated with money. A-Rod’s harms, like those of almost all litigants in an employment fight, are generally economic (loss of pay, loss of endorsements, etc.). Those typically won’t justify imposing an injunction.

As one commenter on Twitter argued to me yesterday, A-Rod could claim irreparable harm because the suspension prevents him from chasing the all-time home run record. It’s probably one of A-Rod’s better arguments for an injunction but, given the caselaw, it’s still too speculative. Notwithstanding his 654 home runs, breaking the record is hardly a sure thing. And, in most instances, courts want a sure thing in terms of irreparable harm.

In the short term, A-Rod will be out for the 2014 season. The more interesting tale is what will happen in 2015, after he serves his suspension. That tale is yet to be told.

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