You won’t find a lot of legal experts who believe Alex Rodriguez will prevail in federal court on appeal, other than perhaps his own attorneys.
In fact, Stanford law professor William B. Gould IV, who served as chair of the National Labor Relations Board (1994-98) and has written books on baseball and labor, feels arbitrator Fredric Horowitz probably didn’t need to reduce the 211-game suspension handed down by commissioner Bud Selig to 162.
Gould reasons that Horowitz made his determination because there was no precedent for a punishment that long. Gould argues that nobody had ever done what A-Rod did, either, just as nobody had ever done what Kermit Washington did when the former NBA player punched out Rudy Tomjanovich on the court in 1977.
Gould thinks A-Rod is sunk for two reasons. One, he never countered any of the charges made by Tony Bosch, Major League Baseball’s top witness and the man who ran the Miami Biogenesis clinic where Bosch alleges he injected Rodriguez with a variety of performance-enhancing drugs.
Rodriguez, who admitted to taking PEDs while with the Texas Rangers, denies taking any from Bosch.
“The ruling is a very careful professional job with detailed fact-finding and thorough consideration of applicable arbitral precedent,” Gould said. “First, the arbitrator laid out the testimony-supporting evidence in the form of not simply uncontradicted testimony of Bosch, but also notebooks, BlackBerry messages, not only noting drugs delivered, but also A-Rod’s instructions to erase messages telling Bosch, for instance, to use the service elevator to avoid watching eyes.
“When the authenticity of the messages were disputed, the arbitrator offered A-Rod a new independent authenticator. He declined. There’s no testimony from A-Rod or anyone disputing the evidence against him . . . clear and convincing proof against him.”
Rodriguez and his legal team also insist the penalty should have been in keeping with a first-time offense. Not so, according to Gould.
“A-Rod argued that the penalty should be that set forth in the drug testing provision [50 games]. As I pointed out in Chapter 7 of ‘Bargaining with Baseball,’ drug offenses have long been handled under the just cause clause in the CBA — in the LaMarr Hoyt, Otis Nixon, Willie Wilson, and Steve Howe cases [the arbitrator invoked that clause] and others long before testing.
“The Anabolic Steroid Act of 1990 was incorporated in the CBA in the ’90s. The drug testing clause began in 2003 setting forth its own sanctions, never affecting just cause as a basis for discipline. As the arbitrator held, each drug test failure constitutes a distinct violation — the failure of the test. Under just cause, A-Rod’s numerous violations, as well his attempt to conceal and cover up, were properly part of just cause.”
As for the reduction in the suspension, Gould reasoned, “One problem I have with the penalty is that while properly comparing it to Steve Howe, the arbitrator rejected 211 games because it was beyond what had been done. A-Rod, like say the Latrell Sprewell case in basketball, did things that no one else has yet been found to do. Selig’s 211 could have been easily upheld. But revision of the remedy is for the arbitrator . . . he is the expert the parties bargained for.”
That’s why Gould sees very little chance of a reversal in court.
“I would be surprised if the decision is reversed,” he said. “Since 1960, arbitration awards can only be reversed when the arbitrator decides on his own ideas of justice rather than the CBA or because of fraud, corruption or partiality. The merits are for the arbitrator, not the courts.
“Probably the arbitrator should have called Selig to the stand to avoid partiality, but that won’t be a basis for reversal on its own. As for the union, their obligation is to investigate A-Rod’s claim in good faith — they did so and took his case. And allowing his own counsel.”
As for A-Rod being upset because he didn’t have his hand-picked arbitrator involved, Gould said, “A-Rod has no right under the CBA to have his man on the three-man arbitration panel.”
Gould contends that while Rodriguez’s side feels MLB and the union were talking too much about the confidential case, he believes they were merely answering A-Rod’s public claims.
“[Former union executive director Michael] Weiner shouldn’t have opined on the merits openly. But A-Rod was leaking and as the arbiter found, the confidentiality clause allows responses,” Gould said.
“I would be most surprised if A-Rod has a case versus either MLB or the MLBPA. Oh, he says that the union should have tried to enjoin the suit by MLB versus Bosch. But they would have been implicated in his coverup — and they have lots of baggage there. The duty of fair representation doesn’t oblige the union to do whatever A-Rod wants. They don’t even have to process his grievance.”
Gould went on to say that “the case reminds us how all the cheaters are ahead of the tests. Biogenesis and BALCO came to light because of newspapers. Sanctions were beefed up because of Congress. Unless baseball is willing to beat the bushes on the alert for future Bosches, it will be business as usual.
“Remember how Selig told told us when [Mark] McGwire partially confessed, ‘the steroid era is over’? Perhaps Selig’s successor will get religion, but it seems unlikely.”
Healthy again, Wedge wants another chance
Former Indians and Mariners manager Eric Wedge will likely take a network television job soon, take a year or two to regroup, see the baseball world from a different point of view, and refresh his perspective for another managerial run.
“It was a rough year. For my wife and my family,” said Wedge, the AL Manager of the Year in 2007 with the Indians, who still lives in Seattle but will soon move to Buffalo. “It was rough, but we got through it and all things are good.”
Wedge had a stroke and missed 27 games last year. Contributing factors were high blood pressure, cholesterol, and the biggest thing, according to Wedge, was sleep apnea, which he feels he’s taken care of. He says his health is now good.
Some frustrating seasons in Seattle culminated with a bombshell story in the Seattle Times, in which Wedge exposed dysfunction in the Mariners’ front office.
Wedge would not revisit the story but has no regrets. He felt he did the right thing and stood up for people he needed to defend.
Wedge, 45, a former Red Sox catcher, did interview with the Cubs for their vacant managerial job this offseason.
“I had a great interview with Theo [Epstein] and Jed [Hoyer],’’ said Wedge. “They were upfront with me, and even though they wanted someone bilingual, they wanted to talk to me, and I really appreciated that. I definitely want to manage again. I know I’m going to miss it this year, but I’m also looking forward to maybe seeing baseball from a different perspective.”
Wedge was overwhelmed by support he received in Seattle after his stroke. He said he enjoyed his time there despite the frustrations.
Wedge believes he still has a lot to offer as a manager, and feels he’s learned from his two previous stops.
“I would love to get another chance. I can’t lie about that,” he said. “I’ve learned a lot. I enjoyed my time in Cleveland, as well. We did some good things there. It was a great organization.”
Apropos of nothing
1. Bob Tewksbury should do a bang-up job as the union’s new director of player development. Tewksbury was the Red Sox’ team psychologist the past few years, and the team has not yet indicated how it plans to replace him.
2. If I were David Ortiz, I might be upset after Alex Rodriguez’s attorney Joseph Tacopina said during a radio interview with ESPN’s Colin Cowherd that he wasn’t naming names on who is taking PEDs, “but some of them are God-like in Boston right now.” Doesn’t that mean Ortiz? After all, Ortiz was on a list of positive results on a survey test for an unnamed substance in 2003. Tacopina denied to colleague Peter Abraham that he meant Ortiz. Then, whom did he mean?
3. Former Red Sox first baseman Tony Clark is asserting himself as a formidable replacement for the late Michael Weiner as executive director of the MLBPA. Clark has taken a strong stand on A-Rod concerning his suit against the union, and is also holding off approving instant replay because MLB has sprung a few extras into the proposal for which he needs player approval.
4. For an organization that needs new ideas, why are the Seattle Mariners choosing to stay in-house for a new team president?
5. We’ve mentioned it before, but the Red Sox might have had the best coaching staff in recent memory with Dana LeVangie, Torey Lovullo, Brian Butterfield, Juan Nieves, Greg Colbrunn, Victor Rodriguez, and Arnie Beyeler. No surprise they were all extended and given raises.
6. Always a good take, SABR Boston is holding an event at the Baseball Tavern Monday afternoon. The scheduled speakers are Adam Darowski, Dan Brooks, Tommy Harper, Peter Gammons, and John Farrell.
7. With teams settling cases before arbitration (a sign there’s a lot of money floating around), guys like Tal Smith are pretty much out of business. Smith argued many cases over the years and had a great won-loss record for teams. But those days seem gone. “We’ve already settled five of our six cases,” said agent Alan Nero. “Last year, there were no cases that went to hearing. I think I would be surprised if there was one this year.”
Updates on nine
1. Chone Figgins, INF/OF, free agent — The Red Sox were not one of the teams who watched Figgins’s workout in Arizona as he attempts a comeback. Figgins was a bust in Seattle but hopes to resurrect his career, even if it’s as a utilityman. It appears he’ll get the chance to be in some team’s camp.
2. Nelson Cruz, OF, free agent — The power-hitting outfielder lingers in free agency. Teams are staying away because salary demands still haven’t come down quite enough, according to one National League general manager. Cruz, who requires a team to give up a draft pick, may have to settle for a pillow contract of one year to reestablish value. Right now, teams are trying to get him for a bargain price, while he is trying to get his true worth even after his 50-game PED suspension, which he served last season. Cruz’s righthanded power still makes a lot of sense for a few teams. The Orioles were one, but their recent acquisition of Delmon Young may squash that.
3. Alfredo Aceves, RHP, Orioles — Despite lots of red flags, the Orioles were willing to take the plunge on Aceves, hoping that they can get him to stay on the straight and narrow and focus on pitching. Between minor league pitching coordinator Rick Peterson and new major league pitching coach Dave Wallace, the Orioles feel they may have a steal in Aceves, who could help them in the rotation or out of the bullpen. Aceves was 4-1 with a 4.45 ERA in six starts for Boston last season. He had two very good performances against the Rays and one good one against the Phillies.
4. Carl Pavano, RHP, free agent — Pavano, after recovering from life-threatening injuries (including having his spleen removed) suffered in a fall at his Vermont home last winter that kept him out of baseball last season, continues to throw off flat ground in workouts in Arizona, according to his agent, Dave Pepe. “Some teams have popped in to see where he’s at. Our intention is for him to throw bullpens for teams in mid-February,” Pepe said. Pavano is now 38. He made 11 starts for the Twins in 2012, his last one June 1 of that season.
5. Aaron Cook, RHP, free agent — The former Rockies and Red Sox pitcher, one of the fastest workers in baseball, is looking to make a comeback after he was forced to shut down after experiencing a tired arm in late July. Cook is fine now and looking for another chance. He did not pitch in the majors last season, making eight starts with Triple A Colorado Springs.
6. Masahiro Tanaka, RHP, free agent — Yes, the Cubs are making their best push for Tanaka, but can what the Dodgers offer trump the Cubs? Then it becomes a question of where does Tanaka really want to play? Chicago is enticing — and Theo Epstein can be very convincing — and Tanaka could certainly be a building block, which could be important given Tanaka’s ego. We’re hearing the terms could get as high as six years, $120 million, and it could be decided ahead of the Jan. 24 deadline.
7. Cedrick Bowers, LHP, free agent — Starting to catch the eyes of scouts in Venezuela, Bowers is a reliever throwing 91-93 miles per hour. He ended last season in the Atlantic League, where he went 2-0 with a 1.69 ERA in 14 appearances.
8. Vernon Wells, OF, free agent — It’ll be interesting to see whether Wells elects to retire and collect $21 million or hook on with another team after his release by the Yankees. One American League special assistant said, “It’s a no-brainer if you need a righthanded bat. He still hits lefties well [.269 last season], can play the outfield, not like he used to, but he’s basically a minimum-salary guy for any team since the Angels are still paying most of the freight.” The Phillies have expressed some interest, but a few teams are beginning to consider a look-see for the 35-year-old former All-Star.
9. Matt Garza, RHP, free agent — Garza awaits his fate after the Tanaka decision. Garza is a noncompensation free agent, but teams have been reluctant to pony up a four- or five-year deal. Garza may have to settle for fewer years even with the price of pitching very high. “There may be concerns about him physically,” said one AL executive. “I think most teams are thinking four or five years is just too risky, even if he’s a no-compensation guy.”
From the Bill Chuck files — “The New York Yankees have led the majors in wins from 2009-13 with 475, an average of 95 per season. They are followed by Texas with 457, Atlanta 456, and Tampa 453. Boston won 440, averaging 88 per season.” . . . Also, “From 1901-2013, the Red Sox have led the majors with 29,659 doubles.” “Over the last 10 seasons (2004-13), Ichiro Suzuki leads the majors with 2,080 hits; Michael Young is next with 1,925.” “Over the last 10 seasons (2004-13), Miguel Cabrera leads the majors with 1,198 RBIs, followed by Albert Pujols (1,117), David Ortiz (1,090), and Mark Teixeira (1029).” And, “Of the 55 batters with at least 5,000 plate appearances over the last 10 seasons, no one has drawn fewer walks than A.J. Pierzynski (209 in 5,216 plate appearances).” . . . Happy birthday, Byung-Hyun Kim (35) and Rich Gale (60).