ANALYSIS : RULE OF LAW : Baseball Commissioner’s Power Had Been Unchallenged by Courts

No one has ever been deluded into believing he gets a fair hearing before the commissioner.

--NEIL PAPIANO, Los Angeles attorney

Neil Papiano challenged Commissioner Bowie Kuhn on behalf of Charles O. Finley and lost. Who hasn’t?

The baseball commissioner has always wielded absolute power.

Some wisely, some foolishly and some not at all.

Supported by rules agreed to in collective bargaining and the courts’ reluctance to intrude on a private organization, particularly an organization exempt from antitrust sanctions, the commissioner’s office has withstood every legal challenge.

And it might again, even though a singles hitter named Pete Rose got to first base Sunday in a bid to prevent Commissioner Bart Giamatti from acting as the judge in his investigation into Rose’s alleged gambling.

Rose, claiming that Giamatti is biased and has prejudged his case, received a temporary restraining order that will prevent Giamatti from conducting his scheduled hearing with Rose in New York today. The ruling gives the two sides 14 days to prepare for the battle over Rose’s bid for a preliminary injunction.

A setback for Giamatti? Certainly.

A loss of credibility and authority for the office? Not yet.

The legal precedent against Rose getting an injunction remains strong.

And attorneys for the commissioner can appeal Sunday’s ruling.

“We’ll fight this tooth and nail,” Giamatti said, protective of his power and fearful, of course, that if Rose is successful, every disciplinary action could be challenged in court.

Papiano, however, dismissed that possibility, viewing Rose’s legal action as no real threat to the commissioner’s authority.

“The commissioner’s power would diminish only through a loss of antitrust status,” he said. “The impact of the Rose case is primarily instructive in a sense.”

Papiano indicated that Giamatti will never again sign a letter of the type that provided the basis of Judge Norbert A. Nadel’s ruling Sunday.

The letter was sent April 18 to U.S. District Judge Carl Rubin, who was scheduled to sentence Ron Peters--Rose’s chief accuser and a self-proclaimed bookmaker--on charges of tax evasion and cocaine distribution. Giamatti said Peters had been “candid, forthright and truthful with my special counsel (John Dowd).”

Nadel, reading the letter into his ruling Sunday, stressed the words “candid, forthright and truthful” and said he agreed with Rose’s contention that Giamatti has already concluded that Rose is guilty.

“It’s not unusual for an attorney to write a letter on behalf of a defendant,” Papiano said, “but I don’t know of one instance where the judge--in this case Giamatti--says in writing that he believes in the truthfulness of one side or another before the case is heard.

“That taints the hearing and represents a major mistake. I think the judge (Nadel) would have let this go to a hearing (with Giamatti) if it hadn’t been for the letter.”

Nevertheless, Nadel--who will be up for election in Rose’s hometown next year--ruled in the face of considerable precedent, a body of work that an appeals court might find more compelling than the letter.

As Nadel acknowledged Friday, he would be moving into uncharted waters by granting a temporary restraining order.

The courts, in general, have stayed away from private organizations and supported the legality of commissioners taking disciplinary action against figures in their sport, particularly for gambling.

In addition, the constitutional guarantees of due process do not always apply to private organizations such as major league baseball.

The Supreme Court recently reaffirmed that principle in supporting the National Collegiate Athletic Assn. sanctions against Nevada Las Vegas basketball Coach Jerry Tarkanian for rules violations.

No one in baseball history has won--or even filed--a lawsuit involving a suspension for gambling. The list includes Leo Durocher, suspended as Brooklyn Dodgers manager in 1947 for associating with gamblers; Detroit Tigers pitcher Denny McLain, suspended in 1970 for alleged bookmaking activities, and former Philadelphia Phillies owner William Cox, who had his ownership revoked for gambling activities.

Even the eight Chicago White Sox players suspended by Commissioner Kenesaw Mountain Landis for allegedly fixing the 1919 World Series elected not to pursue legal recourse against the sport despite being found innocent by a court.

More recently, the courts rejected suits by Finley and Ted Turner. Turner, the Atlanta Braves owner, attempted to overturn his one-year suspension for tampering with prospective free agent Gary Matthews.

“Seventy years ago, the office of the commissioner was created to safeguard the integrity of the game,” baseball attorney Lou Hoynes said in his closing statement before Nadel.

“It is a venerable institution that deserves the respect that courts around the country have accorded it.”

Papiano put it another way:

“With an omnipotent commissioner, it’s tantamount to joining a private club. You play by his rules as long as you’re not discriminatory against one another.”

The principal rule is that the commissioner has the right to act in the best interest of baseball, a vague provision challenged by Finley, then owner of the Oakland Athletics, after Kuhn, citing baseball’s best interest, blocked his $3.5-million sale of Vida Blue to the New York Yankees and of Joe Rudi and Rollie Fingers to the Boston Red Sox.

Judge Frank McGarr ruled then that the commissioner has absolute authority.

“The questionable wisdom of this broad delegation of power is not before the court,” McGarr wrote. “What the parties intended is. And what the parties clearly intended was that the commissioner was to have jurisdiction to prevent any conduct destructive of the confidence in the integrity of baseball.

“So broad and unfettered was his discretion intended to be that they provided no right of appeal, and even took the extreme step of foreclosing their own access to the courts.”

Reflecting on the Finley case, Papiano said, “I thought we had a good chance to win and still think we should have. Charlie’s anti-trust and property rights were violated.

“The commissioner was allowed to establish what a player’s value is and which clubs should hold the balance of power.

“Charlie didn’t break any rules. It wasn’t like the Rose allegation, where he’s accused of breaking a specific and major rule (against gambling).

“The only similarity is in how the commissioner prepares for his hearing. He gets his facts and makes his decision before you get there.”

Rose, who might have been unemployed indefinitely if he had attended Giamatti’s hearing and raised the court challenge afterward, would agree. He simply can’t be certain that the courts will continue to.