Arbitrator’s Ruling on Rodriguez Gives Baseball a Disciplinary ‘Hammer’
Alex Rodriguez incurred the anger of many of his fellow players when he sued the players union on Monday, but over time, they may come to despise him even more for confirming Major League Baseball’s sweeping powers of punishment.
The decision of the arbitrator Fredric R. Horowitz to suspend Rodriguez for a full season establishes a precedent that for the first time in a legally binding proceeding upholds Major League Baseball’s use of the so-called just cause section in the Joint Drug Agreement, according to experts in labor law. The decision also provides a new standard for the penalties the commissioner can mete out for behavior like Rodriguez’s.
“Horowitz has interpreted the clause for the first time,” said Joseph Farelli, a partner in the law firm of Pitta & Giblin and a labor lawyer who has worked on thousands of employee arbitration cases. “No one knew exactly what kind of penalty the clause provided for. Now we have a guideline.”
Now, after Horowitz’s ruling, the clause allows M.L.B. to suspend a player for 162 games and the postseason if evidence shows repeated use of banned substances and the player tries to cover it up, as Horowitz ruled Rodriguez did. That is a more onerous penalty than the 50 or 100 games specified in Section 7.A of the Joint Drug Agreement. M.L.B. could choose to suspend a player for even more games than 162, or perhaps fewer.
“He has given baseball a huge hammer,” Charles Michael, a partner at the law firm Brune & Richard, said of Horowitz. “It renders the protection under the schedule of penalties in Section 7.A weak and almost nonbinding. It’s bad for the players.”
Theoretically, if a player tests positive a first time for a banned substance, Major League Baseball could investigate the player, as it did with Rodriguez, and if other evidence against him is found, it could impose a higher punishment.
M.L.B. always thought it had the right to do this. On Saturday, Horowitz confirmed it.
When Commissioner Bud Selig wrote to Rodriguez on Aug. 6 to inform him of his 211-game suspension, he invoked Section 7.G.2 of the Joint Drug Agreement, the just cause section. He said Rodriguez had violated the drug rules and had engaged in conduct “materially detrimental” to the best interests of baseball.
Horowitz specifically cited the clause in his ruling and noted that the league and the players union had agreed to it. But until Selig applied it and Horowitz upheld it, there was no framework for what it allowed the commissioner to do.
Previously, Section 7.A provided the well-known schedule for punishment: 50 games for the first violation, 100 games for the second and a lifetime ban for the third.
Section 7.G.2, a brief and somewhat vague sentence that was inserted in the Joint Drug Agreement in 2008, appears further into the document. It allows the commissioner to punish a player for offenses not detailed in the earlier sections of the agreement. “A player may be subjected to disciplinary action for just cause by the commissioner for any player violation of Section 2 above not referenced in Section 7.A through 7.F above,” it reads.
It does not specify what just cause is, or what the disciplinary action may be.
In essence, it states that anything a player does that is not addressed previously in the agreement is subject to undefined suspension based on just cause. The union, in filing its initial appeal of the Rodriguez suspension over the summer, argued that the commissioner did not have just cause in the case and that Rodriguez deserved at most a 50-game suspension, according to the schedule laid out in Section 7.A.
Horowitz emphasized that the union and the league had agreed to the provisions of Section 7.G.2, and he ruled that they applied to Rodriguez.
“The record establishes,” Horowitz wrote, “that cases such as this, involving continuous or prolonged use or possession of multiple substances,” were intended to be handled under Section 7.G.2 rather than Section 7.A.
Section 7.A outlines the penalty for a single positive analytical test. But Rodriguez never had that.
If another player is suspended under Section 7.G.2 and appeals, the arbitrator, whether Horowitz or someone else, will probably cite Horowitz’s ruling in the Rodriguez case.
Farelli and Michael said Horowitz’s ruling, especially in referring to Section 7.G.2, was sound and almost impervious to second-guessing by a federal judge. Donald Schroeder, a partner in the labor group at the law firm Mintz Levin, agreed, saying Horowitz was a respected arbitrator and would not easily be overruled.
“It would take the equivalent of a polar vortex and a vernal equinox,” Schroeder said. “The odds are remote at best.”
The lawyers estimated that the judge in the case would not render a ruling for at least three months, and perhaps for as long as a year, depending on pretrial procedures. In the meantime, Horowitz’s ruling remains in effect, including his endorsement of the commissioner’s new powers.
“Rodriguez unwittingly did his fellow players a huge disservice by bringing this case to arbitration,” Farelli said. “Baseball now has the power to impose penalties beyond what people thought they could.”
