January 21, 2014

A-Rod Lawsuit Q&A

As an attorney representing labor unions for twenty years, I feel obliged to expound upon the complaint Alex Rodriguez filed in federal court and to explain how the process works and what to expect next.  This post is not legal advice.

Q: What led up to the suit?
A: After MLB suspended AR for 211 games, the Players Association filed a grievance to overturn or reduce the suspension.  Under the CBA, this process is the exclusive remedy for players who want to challenge these actions.  There was a panel of three arbitrators, one selected by MLB, one selected by the Players Association, and one neutral, who served as Chair.  A hearing was held over several days.  Witnesses were called to testify and documents were introduced.  The Award reduced the suspension to a full season - 162 games (plus any post season games).  Neither side was really "happy" with the outcome, but both MLB and the Players' Association signaled that they would not try to set aside ("vacate") the Award when they said it was "final and binding."  AR then filed suit in New York federal court.

Q: I understand why he sued MLB, but why did AR sue his own Union?
A: In order to challenge the Award, he basically had to.  This might come as a surprise, but AR was not a "party" to the arbitration.  His status was that of "grievant."  Typically, only the Union and the Employer (MLB) are parties to the agreement to arbitrate, and under ordinary circumstances only those two parties can try to vacate the Award.  The only "standing" AR has is to say that MLB breached the CBA and that the Union did such a poor job that they "breached their duty of fair representation."  These suits are fairly common.  Grievants who are unhappy with the outcome of an arbitration routinely point the finger of blame at both the Employer (for taking action that lacks "just cause") and the Union that represented them (for lousy representation.)

Q: Can he win?
A: It's going to be awfully difficult.  Here's the needle he has to thread.  First he has to demonstrate that the Award was wrong.  Without agreeing or disagreeing that AR committed the offenses of which he was found guilty, let's presume he gets past that prong.  Then he has to prove that the MLBPA breached its duty to him to fairly represent him.   A duty-of-fair-representation claim arises when a union that represents an employee in a grievance or arbitration procedure acts in a discriminatory, dishonest, arbitrary, or perfunctory fashion and such conduct must have "seriously undermined" the integrity of the grievance/arbitration process.  The Complaint alleges that an interview of Michael Weiner, then Executive Director of the MLBPA, proves that the grievance was mishandled.  He stated that, depending upon the terms of the suspension, AR should take a deal.  Anyone who does this for a living, myself included, would tell you that this advice is given every day in thousands of cases around the country.  It's insurance against the catastrophic.  You take the punishment, even if you don't think you deserve it, so you can keep your job. What you have to lose is more important than proving your innocence. What if MLB decided that a lifetime ban was appropriate and sought to impose the employment equivalent of the death penalty on AR?  To avoid that, wouldn't you take a suspension instead? 

Q: Why didn't AR go for an injunction?
A: The timing doesn't work.  In federal court a temporary restraining order can only last ten days (with one ten day extension).  After that ten (twenty) days, the TRO automatically dissolves.  A TRO is an emergency measure to preserve the status quo while the judge and the parties straighten things out.  The court isn't ruling on the merits of the case, instead focusing on something called "irreparable harm."  Within the time the TRO is in effect, AR would have had to go forward on a hearing for a preliminary injunction.  At this hearing, the judge looks at the substance of the case and evaluates the "likelihood of success on the merits."  Only a party that has a really good case wants to go to this kind of hearing without engaging in document discovery and depositions first.  They might also be waiting for the days right before Opening Day when the irreparable harm of not playing becomes really important. Remember, AR can still play in preseason games. 

Q: What's next?
A: MLB and the Players Association have to file either Answers to the Complaint or they may go for it all and file a motion to dismiss.  This last course is a home run swing at getting rid of the case entirely.  If they decide to swing for the fences, the judge has to decide, on the assumption that everything AR says is true, if the case should go forward.  It should be interesting.

Q: What does this have to do with the Mets?
A: Not much really. Presuming AR is not on the field for the other team in the Bronx, the market for Steven Drew might be one team stronger.  I'm really reaching. 

There is one parting observation: 14 years ago, Mets fans were dreaming about a lineup that included Mike Piazza and AR.  Somehow, we managed to screw it up and AR signed with the Rangers. Our team made weak excuses about selfishness and private planes.  We really knew it was about the money.  Hindsight is a wonderful thing.  Based on the steady decline of the other players, and then of Piazza himself, there is little chance that signing AR would have benefitted the Mets in any substantial way - perhaps 2001 would have been another playoff year - but that's about it.  With that salary, there is no chance that we get Beltran or any of the other players that made 2006 possible.  David Wright probably plays for the other team in the Bronx. How glad are we that Steve Phillips and his famous skill set decided against putting all those eggs in that basket?

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