Arbitrator Fred Horowitz’s Decision against Alex Rodriguez

Alex Rodriguez sued major league baseball and also the player’s union today in order to vacate the 162-game suspension Arbitrator Fred Horowitz imposed this past weekend.  In connection with his filing, a federal district court judge ruled that Rodriguez had to file as an exhibit to his complaint an unredacted copy of the Horowitz’s arbitration decision.  You can find a copy of ARod’s complaint and Horowitz’s arbitration decision here.

I spent the evening reading both ARod’s complaint and Horowitz’s arbitration decision.  I’ll discuss the arbitration decision in this post.

What it essentially comes down to is that Horowitz believed “drug dealer” [Horowitz’s own description] Anthony Bosch’s testimony as corroborated by the documentation from Bosch and Biogenesis America which Bosch testified were legitimate.  Horowitz apparently believed Bosch was not lying under oath in large part because Rodriguez presented no direct testimony by himself or his flunkies, Jorge “Oggie” Velazquez and Yuri Sucart, the persons Bosch testified were involved and present during his alleged provision of performance enhancing drugs to ARod.  In short, because ARod refused to testify that Bosch’s claims were all lies and thus subject himself to cross-examination by MLB’s attorneys, the arbitrator had little reason to disbelieve Bosch’s testimony or conclude the supporting documentation was false.

Horowitz specifically found that Rodriguez used and/or received three banned performance enhancing drugs (“PEDs”), testosterone, human growth hormone (“HGH”) and insulin growth factor one (“IGF-1”) on multiple occasions in each of 2010, 2011 and 2012.  Horowitz also concluded that Rodriguez engaged in at least two acts to impede MLB’s investigation into his alleged PED use after the Miami New Times article came out in January 2013.

It’s worth noting here that the one piece of corroborating testimony cited by Horowitz in his decision is the testimony of Bosch’s lawyer Susy Ribero-Ayala that she met with ARod and his lawyers immediately following the publication of the Miami New Times article, during which meeting ARod’s lawyers presented her with a draft denial for Bosch of the newspaper’s allegations, offered to pay Bosch’s legal fees and three weeks later (February 19, 2013) gave Ribero-Ayala a payment of $25,000.

The reasoning behind Horowitz’s 162-game suspension is that use of three different banned substances constitutes three separate violations of the Joint Drug Agreement (“JDA”).  Further, Horowitz ruled that because no positive drug tests were involved, the 50-game suspension for a first offense, 100-game suspension and lifetime ban for a third offense regime contained in section 7.A of the JDA did not apply, and instead the “just cause for other discipline” provision of section 7.G applied.

In my humble opinion, Horowitz’s argument that ARod’s violation does not constitute a single “first offense” is strained.  However, he makes a rational and colorable argument for his reading of the JDA; and as the arbitrator, it is quite literally his job to determine what the ambiguities in the parties’ collectively bargained agreements mean.

Horowitz contends that even taking the section 7.A suspension regime as a “useful guidepost” for just discipline under section 7.G, a 162-game suspension is just because three first-time violations (for three different PEDs) would result in three 50-game suspensions, or 150 games total.  Add to that ARod’s two attempts to impede MLB’s investigation, Horowitz states, and a 162-game suspension is certainly just.

Additionally, Horowitz’s decision does address previous arbitration decisions regarding player discipline for using banned substances.  Specifically, he found that a much greater penalty than Steve Howe’s 119-day (not game) suspension in 1994 was appropriate for ARod because the JDA specifically makes penalties for use of PEDs greater than those for use of recreational drugs.  There is an obvious logic to this position, as a player’s intentional and coldly calculated use of PEDs is different from an addict’s use of narcotics and more greatly impacts the integrity of the game’s competition.

The upshot of all of this is that while I may not fully agree with Horowitz’s interpretation of the terms of the JDA, I think it will be very difficult for Alex Rodriguez to overturn Horowitz’s ruling.  The arbitrator, as the trier of fact, gets to determine the credibility of witnesses or the lack thereof.  Even if/though Anthony Bosch is a complete scumbag, the arbitrator is entitled to conclude that his testimony under oath was truthful, particularly where ARod and his lawyers apparently offered no direct testimony contesting Bosch’s version of the facts.

It’s also going to be nearly impossible to show that Horowitz’s decision “does not draw its essence from” the relevant collectively bargained agreements or that the decision constitutes “an egregious manifest disregard of the law,” as ARod’s complaint alleges.  The relevant agreements are subject to Horowitz’s interpretation and his interpretations are not outrageous.

In my next post, I’ll discuss the allegations of Rodriguez’s complaint, at least insofar as they haven’t already been discussed above.

Explore posts in the same categories: Baseball History, New York Yankees

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