Why A-Rod is right to appeal his suspension

Yankee slugger Alex Rodriguez on Monday filed a federal court challenge to his 162-game suspension for doping.

He’s right to do so. The details of the Jan. 11 arbitrator’s ruling upholding the suspension, which is attached to the court complaint, should send shivers down the spine of anyone concerned about due process and the rule of law in America. Long story short: Those didn’t exist in the arbitration room. (You can read the lawsuit here; the arbitrator’s ruling begins on page 44 of the file.) Sports and law blogger Scott Lemieux calls this case “baseball’s Bush v. Gore,” which sounds about right.

We’ve documented in the past how doping accusations in sports depend absolutely on kangaroo court procedures, on questionable evidence for which the questions are ruled out of order. That’s certainly been true in A-Rod’s case. The doping cops’ argument is that you can’t catch dirty crooks without being a little dirty yourself. But we don’t accept that argument in any other context; why is it acceptable here?

The text of the ruling by arbitrator Fredric R. Horowitz strongly suggests that if this were a case brought in a court of law, especially a criminal court, A-Rod would walk. That’s A-Rod’s legal position, but you don’t have to take his word for it. The ruling shows that Horowitz accepted hearsay testimony against Rodriguez. He relied on physical evidence allegedly stolen from the source, and then handed over to Major League Baseball by the thief; it’s hard to believe that evidence with such a tattered chain of custody would be allowed in a real court. Horowitz drew a negative conclusion from A-Rod’s refusal to testify in his own defense; that’s not permitted in criminal court, where defendants can’t be compelled to testify against themselves.

As for the main witness against A-Rod, the accused drug purveyor Anthony Bosch, his testimony had been purchased by the league with threats and cash. As Horowitz acknowledges, the league promised to drop a lawsuit against Bosch and his brother, to pay his legal fees and $2,400 a day for personal security, and to indemnify him against lawsuits from other players. This was all in exchange for Bosch’s recanting his earlier denial that he had provided performance-enhancing substances to Rodriguez. Yet Horowitz hammered A-Rod for allegedly offering to pay for Bosch’s attorney if he’d stick to his denials.

You can conclude from this that both sides acted with less than an uplifting respect for the integrity of the legal system, but what are the grounds for deciding (as Horowitz evidently did) that it was OK when the league did so, but damning when A-Rod did?

The Horowitz ruling reads as if the arbitrator viewed every piece of evidence through the assumption that A-Rod was guilty. That’s plainly not what you want from someone who’s supposed to be an impartial judge. But as the Rodriguez team quite properly observes, Horowitz’s impartiality is highly questionable.

Under the rules of baseball arbitration, Horowitz, like any arbitration panel chair, can be fired by either the league or the players association. (MLB and the PA each appoint their own member to the three-judge panel, but in practice their votes cancel each other out, leaving the decision to the “neutral” man in the middle. The ruling against A-Rod was, as is typical, 2-1.) But only the league has ever fired a “neutral” arbitrator. In 2012 the league fired Horowitz’s predecessor, Shyam Das, a few months after he ruled against the league by overturning the doping suspension of Milwaukee Brewers’ Ryan Braun.

Das wasn’t the first arbitrator to be given the message--the league fired Peter Seitz after he ruled against the league in the Andy Messersmith case, which introduced free agency; and Thomas Roberts after he found that the league owners had colluded against free agents in 1985 and 1986.

That may be the most disturbing thing about baseball arbitration: not even the “neutral” arbitrator can be neutral if he values his livelihood.

It certainly looks as though Horowitz made up the rules for suspension on his own, rather than relying on the rules set forth in the league’s collective bargaining agreement with its players’ association. Those rules establish a 50-game suspension for the first doping offense, 100 games for the second offense and a lifetime ban for the third. They also say the league can’t impose discipline for a second offense before adjudicating the first, but in this case the league is alleging multiple offenses all at once. Horowitz finesses that issue by finding that because the allegations involve a bunch of different substances, they can all be wrapped together.

Horowitz acknowledges that he’s breaking new ground with A-Rod’s 162-game suspension, which would wipe out the player’s 2014 season and conceivably end his career. It’s the longest suspension ever imposed, which is why he had to find novel grounds for its length. Among those grounds is A-Rod’s alleged attempts to “obstruct” the league’s investigation; A-Rod maintains there’s nothing in league rules or the collective bargaining agreement providing for suspension for anything like that.

The grounds for disquiet over the A-Rod procedure have been iced over by public hysteria about performance-enhancing substances in sports. That’s the way the owners like it, because it gives them great latitude to treat their employees like dirt. Horowitz’s observation that it doesn’t matter that A-Rod passed every drug test because “no drug test will catch every Player” is a real breakthrough, the very definition of the rule that every ballplayer is guilty unless proven innocent (and the deck is stacked against proof of innocence).

The common fan reaction to A-Rod’s suspension is, hey, he’s obviously guilty, so why should we care about how he got whacked? The answer is that once you chip away at due process in one field, you’ve undermined it everywhere. Whether you think the use of performance enhancing substances is dirty or not, the one indisputable fact is that a multitude of the cases against the accused are dirty themselves. The only way to restore the rule of law is to force these cases into court, where they belong. That’s what A-Rod is doing, and he should have your support for the effort.