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Monday, January 13, 2014

Judge denies Alex Rodriguez’s request to seal arbitrator’s decision

Following the precedent set in The World v. The Seinfeld Finale.

A U.S. District Court judge rejected Alex Rodriguez’s request Monday to file a redacted version of a complaint to overturn the arbitration award that would have sealed arbitrator Fredric Horowitz’s written decision on why he hit Rodriguez with a season-long suspension…

“Given the intense public interest in commissioner’s Selig’s disclosures last night it’s difficult to imagine any portion should be under seal,” Pauley said, citing First Amendment considerations and ruling that A-Rod would have to file an unredacted version of a complaint to overturn the arbitration award.

According to attorneys Jordan Siev and Jim McCarroll of the Reed Smith law firm, Rodriguez will file a complaint in the next few hours that is separate from the existing lawsuit Rodriguez has already filed against MLB and commissioner Bud Selig.

The complaint will seek to overturn the arbitration award and the historic suspension. “It’s an attack on the arbitration,” Siev said as he left the courthouse.

The District Attorney Posted: January 13, 2014 at 03:40 PM | 24 comment(s) Login to Bookmark
  Tags: alex rodriguez, legal, ped, yankees

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   1. eddieot Posted: January 13, 2014 at 03:57 PM (#4637934)
Rodriguez will file a complaint in the next few hours that is separate from the existing lawsuit Rodriguez has already filed against MLB and commissioner Bud Selig.

So who is left to sue? I guess he can sue the MLBPA but not sure on what grounds? That they didn't argue his case hard enough? Historically the courts stay way far away from meddling in arbitration decisions. Can he sue Horowitz?
   2. TRBMB Posted: January 13, 2014 at 03:59 PM (#4637938)
This stupid clown is going to be taken to the cleaners by Tacopina and associates. I suppose if you have millions of dollars to throw away, the severity of the toss isn't felt for quite awhile.
   3. dlf Posted: January 13, 2014 at 04:02 PM (#4637942)
So who is left to sue? I guess he can sue the MLBPA but not sure on what grounds? That they didn't argue his case hard enough? Historically the courts stay way far away from meddling in arbitration decisions. Can he sue Horowitz?


A federal lawsuit is the way to 'appeal' an arbitrator's award. Functionally, this is the same as a loosing party appealing to a higher court, but the standard for a successful appeal is very high. It is not a separate lawsuit.
   4. GregD Posted: January 13, 2014 at 04:06 PM (#4637946)
This stupid clown is going to be taken to the cleaners by Tacopina and associates. I suppose if you have millions of dollars to throw away, the severity of the toss isn't felt for quite awhile.
The argument in front of the arbitrator saved him what $8 million in the reduction in the suspension. The arbitrators' decision still cost him, what, $31 million? If his odds of a victory are 10%, spending an additional $3 million on his defense is worth it, right?
   5. snapper (history's 42nd greatest monster) Posted: January 13, 2014 at 04:09 PM (#4637950)
The arbitrators' decision still cost him, what, $31 million?

$25M in salary
   6. Gonfalon Bubble Posted: January 13, 2014 at 04:11 PM (#4637955)
The judge had better watch out. Whenever events turn against Alex Rodriguez, he sets plans into motion to have people murdered. We know that this is true because someone said it on TV.
   7. JRVJ Posted: January 13, 2014 at 05:22 PM (#4638028)
I, for one, doubt Alex would be very effective at having somebody murdered, since he'd want to scream "Hah!" beforehand.
   8. Der-K and the statistical werewolves. Posted: January 13, 2014 at 05:25 PM (#4638036)
He's suing the MLBPA (and MLB).
   9. Best Regards, President of Comfort, Esq. Posted: January 13, 2014 at 05:39 PM (#4638051)
I, for one, doubt Alex would be very effective at having somebody murdered, since he'd want to scream "Hah!" beforehand.


Bullshit. I've been told many times he's very good at choking.
   10. Ray (RDP) Posted: January 13, 2014 at 05:45 PM (#4638055)
Here's ESPN's (or Wallace Matthews's) summary of the complaint (I haven't read the complaint yet):

The suit seeks to vacate Horowitz's ruling, based on the arbitrator's "manifest disregard for the law,'' his "evident partiality,'' and refusal "to entertain evidence that was pertinent and material to the outcome."


3 parts to the above. I view 1 as a good argument for ARod, 2 as a losing argument, and 3 as a longshot argument.

This part I think will be what this case turns on. And I have long argued here that the proper ban for ARod even if he's guilty of use/possession and even some obstruction is on the order of 50 games:

The complaint calls the 162-game ban "wholly unjustifiable'' and alleges Horowitz ignored the stipulation of baseball's Joint Drug Agreement, which calls for a 50-game ban for a first-time drug offense.

"He ignored the clear disciplinary action of the JDA,'' the complaint reads, referring to the arbitrator. "Accordingly, the Arbitration Award is not legitimate as it does not draw its essnce from the JDA or (C)BA.''


Note here that we'll see Horowitz's ruling. Also that ARod is as expected attacking the union as well:

The 42-page complaint names Major League Baseball and the Major League Baseball Players Association as defendants and includes among its exhibits Horowitz's written ruling on A-Rod's appeal.

In it, Rodriguez alleges the players' union breached its "duty of fair representation'' and charges MLB and the MLBPA with imposing a suspension without just cause.


Also, the article I read earlier today was that the judge is forcing ARod to make Horowitz's ruling public when that didn't really make sense because ARod seems to want that made public. From the ESPN story it is the UNION who didn't want it public. But who knows.

I doubt ARod will get very far with the following allegations, which are part of my #3 "longshot" assessment above:

The complaint alleges that Horowitz denied Rodriguez and his attorneys the right to cross-examine Bosch and Selig, who opted not to testify in the appeal. The complaint also alleges that Horowitz denied Rodriguez' attorneys the right to examine the BlackBerry devices baseball alleges were used to transmit incriminating text messages between Rodriguez and Bosch.

"These are only some of the egregious actions taken by Arbitrator Horowitz during the grievance process, each of which standing alone warrants vacatur of the Arbitration Award,'' the complaint reads. "And together they demonstrate the inherent unfairness and pre-ordained result attendant to the arbitration process.''

   11. JL Posted: January 13, 2014 at 05:50 PM (#4638065)
I, for one, doubt Alex would be very effective at having somebody murdered, since he'd want to scream "Hah!" beforehand.


And the hoof prints would give him away.
   12. Ray (RDP) Posted: January 13, 2014 at 05:52 PM (#4638069)
From the Post, Horowitz wrote this in his decision:

“While this length of suspension may be unprecedented for a MLB player, so is the misconduct he committed,” Horowitz wrote in his decision Saturday.


It's just one sentence, but, again, the issue is whether the alleged "misconduct" by ARod is punishable according to the JDA and CBA, and if so, then how the punishment can reach 162 games.

"He did a lot of bad things" doesn't explain how 162 is supported by the JDA/CBA/precedent/law.
   13. JL Posted: January 13, 2014 at 05:53 PM (#4638070)
The complaint alleges that Horowitz denied Rodriguez and his attorneys the right to cross-examine Bosch and Selig, who opted not to testify in the appeal. The complaint also alleges that Horowitz denied Rodriguez' attorneys the right to examine the BlackBerry devices baseball alleges were used to transmit incriminating text messages between Rodriguez and Bosch.


I am curious how Bosch was able to corroborate the written evidence without testifying. If he did so by affidavit or declaration, I would think they still could have crossed him.
   14. Ray (RDP) Posted: January 13, 2014 at 05:58 PM (#4638075)
#13, yes, I was surprised to learn that Bosch did not testify.
   15. Srul Itza Posted: January 13, 2014 at 06:09 PM (#4638079)
There are four statutory grounds for overturning an arbitration award, and one judicially created version. All of them are very narrowly interpreted.

The statutory grounds are found in section 10 of the Federal Arbitration Act, and provide for an award to be vacated where the award was (1) procured by corruption, fraud, or undue means, (2) where there was evident partiality or corruption on the part of the arbitrator(s), (3) where the arbitrator(s) were guilty of misconduct in refusing to postpone the hearing, in refusing to hear pertinent evidence, or any other misbehavior which prejudices the rights of any party, and/or (4) where the arbitrator(s) exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter was not made.

With regard to Item No. 2, some courts have held that, under the FAA, all of the arbitrators -- even party selected ones, like here -- must act without bias. I don't think the Second Circuit follows that, so this will not help A-Rod. Beyond something like that, Courts almost never find evidence partiality (and almost never overturn awards, anyway).

With regard to Item No. 3, the Courts actually give the arbitrator a lot of leeway in what evidence they hear, the plain words of the statute notwithstanding.

With regard to manifest disregard, the Second Circuit requires proof that "(1) the arbitrator knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the law ignored by the arbitrator was well defined, explicit, and clearly applicable to the case." Arbitrators are expressly allowed to be wrong on the law, so in the absence of an arbitrator saying "I know that the law says X, and that X is applicable, bit to hell with it, I don't like the law and will do whatever the heck I feel", it is hard to make a case based on this.

To the extent the Court views this as a labor-type arbitration, the arbitrator is required to "draw his ruling for the essence of the collective bargaining agreement." That is a very loose standard, and Courts have read into different standards.


   16. Pops Freshenmeyer Posted: January 13, 2014 at 06:17 PM (#4638089)
Thanks, Srul. I knew courts were highly deferential but #4 looks even more deferential than I would have guessed. Now I understand that simply being wrong is not enough to void the decision but what if an arbitrator is essentially acting ultra vires? I mean, he can't order ARod to do community service and wear a scarlet S, right? Does it matter the JDA/CBA allow for greater punishment than he levied (lifetime ban)?

EDIT: I recognize the standards are a bit differently applied amongst the courts so it's impossible to answer that in absolute terms.
   17. Srul Itza Posted: January 13, 2014 at 06:20 PM (#4638092)
Acting ultra vires would fit into statutory ground number 4, where the arbitrator exceeds his powers. The arbitrator cannot order relief beyond that which the contract or the agreement for submission to arbitration allows.
   18. The Id of SugarBear Blanks Posted: January 13, 2014 at 06:21 PM (#4638093)
#13, yes, I was surprised to learn that Bosch did not testify.

So the centaur got no chance to cross-examine either (1) the man who decided his penalty; or (2) the main, if not only, person accusing him of violating the CBA.
   19. billyshears Posted: January 13, 2014 at 06:33 PM (#4638102)
I, for one, doubt Alex would be very effective at having somebody murdered, since he'd want to scream "Hah!" beforehand.


Then he would pause to explain how he outwitted his victim.
   20. Davo Dozier Posted: January 13, 2014 at 06:39 PM (#4638108)
Acting ultra vires would fit into statutory ground number 4, where the arbitrator exceeds his powers. The arbitrator cannot order relief beyond that which the contract or the agreement for submission to arbitration allows.

I'm so bad at lawyering, I had to drop out of a North Dakota Law School, so please take mercy on me:

Would assigning a 162-game penalty to Alex Rodriguez if the maximum penalty allowed under a Collective Bargaining Agreement was just 50 games apply here?
   21. Srul Itza Posted: January 13, 2014 at 06:46 PM (#4638116)
It might fit, if the Collective Bargaining Agreement were crystal clear that the arbitrator is limited to awarding that relief or other relief specified by the JDA. However, the Collective Bargaining Agreement is not necessarily so clear.
   22. Ulysses S. Fairsmith Posted: January 13, 2014 at 07:00 PM (#4638136)
If I were a betting man, I'd bet that Rodriguez will play at least one major league game in 2014.
   23. dlf Posted: January 13, 2014 at 07:02 PM (#4638137)
The statutory grounds are found in section 10 of the Federal Arbitration Act


The standards aren't quite the same under Section 301 of the LMRA, as broadly defined in the Steelworkers Trilogy, as they are under the FAA but Srul's synopsis is close enough.
   24. dlf Posted: January 13, 2014 at 07:05 PM (#4638139)
#13, yes, I was surprised to learn that Bosch did not testify.


I think that Bosch did testify, but Rodriguez's team wanted to cross-examine on additional areas or at greater length. Note the difference in the wording of the complaint -- on Selig "right to face his accuser" vs. Bosch "right to a full and complete cross"

Edit: Bosch did testify; Rodriguez's complaint makes clear that he is challenging Horowitz's procedural decision regarding scope of cross. I've never seen a reported case where an arbitration award was overturned based on the scope of allowed testimony or examination.

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