Say it ain’t so, A-Rod?

Back in August 2013, I wrote about the Biogenesis scandal that resulted in the suspension of 13 major and minor league baseball players, including a 211-game suspension for Alex Rodriguez. Well, thanks to A-Rod, this story has become the gift that keeps on giving.gummy bears

On January 11, 2014, Arbitrator Frederic R. Horowitz issued his decision with respect to A-Rod’s grievance challenging his suspension. While the Arbitrator reduced A-Rod’s suspension to 162 games, plus the postseason (the entirety of the 2014 season), the decision largely cuts against A-Rod and is viewed as a big win for MLB. While the decision itself would have remained confidential under the terms of the collective bargaining agreement between MLB and the MLB Players Association, it is now a matter of public record as a result of A-Rod’s latest Hail Mary, a federal lawsuit seeking to throw out the arbitrator’s award.

The arbitrator’s 34-page decision goes into fairly specific detail regarding A-Rod’s regimen of performance-enhancing substances, hundreds of text messages between A-Rod and Anthony Bosch (including fun code names such as “Gummies,” “Pink Food,” “Liquid Soup,” and a host of others) and some powerful language regarding why a suspension for the entire 2014 season and postseason was deemed warranted based on the supporting evidence. Specifically, the arbitrator’s decision states that “It is recognized this represents the longest disciplinary suspension imposed on a MLB player to date. Yet Rodriguez committed the most egregious violations of the JDA reported to date, and engaged in at least two documented attempts to cover up that behavior in violation of the Basic Agreement.” In addition, “[w]hile this length of suspension may be unprecedented for a MLB player, so is the misconduct he committed.” Powerful stuff.

ESPN’s legal analyst Lester Munson is on record as claiming A-Rod has “zero chance of ultimate success” in seeking to overturn the arbitrator’s decision with his latest lawsuit. While “zero” may seem like hyperbole, A-Rod faces an extremely uphill battle. Courts are reluctant to overturn an arbitrator’s decision, as the rationale for arbitration is to serve as an alternative to the expense and delay inherent in litigation. Consequently, the burden for vacating an arbitration award is extremely high, requiring A-Rod to demonstrate the arbitrator exhibited “manifest disregard for the law” or was not impartial and therefore was biased against A-Rod.

So what is A-Rod thinking with this lawsuit? He’s probably thinking he’s got nothing to lose. He can afford the team of attorneys and has the time to dedicate to this lawsuit. In addition and in a somewhat surprising move, A-Rod also has sued the MLB Players’ Association, claiming it breached its duty of fair representation to him throughout the entire process that led to his suspension, as well as the arbitration. Perhaps by going after the Players’ Association as well, he is hoping he can get discovery of information that could show the arbitration process was flawed in some way.

Either way, it will be extremely difficult for A-Rod to prevail, and while he may have continued the fight, no amount of money or resources will enable him to emerge victorious unless a smoking gun somehow magically appears. This situation highlights the importance for employers to ensure the proper drafting and negotiation of arbitration agreements with their employees, or with the employees’ representative union. Because if you succeed in the less costly and more efficient forum of arbitration, it’s doubtful that at the other side of the table sits a millionaire with motivation to spend whatever it takes to pursue the unlikely dismissal of such an award.