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A-ROD’S ARBITRATION OVER: END OF AN ERROR?

Kallas Remarks by Steve Kallas – Finally, the Alex Rodriguez arbitration ended at 245 Park Avenue at the offices of Major League Baseball (“MLB”) on Thursday.  Spanning 12 days, from the end of September through Thursday, November 21st, the arbitration had many ups and downs, mysteries and follies, rights and wrongs.

WHAT HAPPENED AT THE END?

Well, what happened in the last two days was almost comical.  Clearly the main arbitrator, Fredric Horowitz, decided to keep the focus of the appeal narrow, that is, whether or not Alex Rodriguez had used performance-enhancing drugs in 2010, 2011 and 2012.

When he ruled against the request of A-Rod’s legal team to make Commissioner Bud Selig testify, A-Rod stormed out of the room and went down to WFAN’s studios to speak with Mike Francesa.  During that time, A-Rod vehemently denied that he had done anything wrong and stated that he had not done PEDs (again, during the 2010-12 time period), as he has previously admitted PED use from 2001-2003.

WHY DIDN’T A-ROD TESTIFY UNDER OATH?

A thorny question for the A-Rod team and one that they have failed to adequately answer (the notion that he might get more games if MLB thought he was lying in his pre-testimony testimony (something that would never be upheld even by Horowitz) is a red herring).  In fact, that whole part of the process is probably illegal..  You can’t simply state that, if Bud Selig doesn’t testify, A-Rod won’t and, if he does, A-rod will.

That’s simply not how it works and the two potential witnesses don’t come as a package.  It was (and still is) hard to believe that A-Rod will ever testify under oath.  If he does, one of the first things he will be confronted with on cross-examination will be his now famous (infamous?) Katie Couric interview where he, on national TV (“60 Minutes” of all shows), lied through his teeth about PED usage.  Eventually, of course, he admitted it.

So, if and when he testifies under oath, he’ll be shown that tape and asked, “were you lying to Katie Couric at the time,” and then, after he answers yes, he’ll be asked, “aren’t you lying now.”  When he says no with an explanation, everybody, especially a federal judge (if it ever even gets to that point; it says here A-Rod won’t testify), will be looking at him as a liar ON THE VERY SAME SUBJECT HE IS TESTIFYING ABOUT (use of PEDs).

DID A-ROD’S BEST CHANCE JUST PASS HIM BY?

Absolutely.  A-Rod had a real opportunity at his arbitration to knock this suspension down.  In fact, it says here that the arbitrator will slash this unfair suspension.  The real question is by how much?  And, then, the next question, will A-Rod go to federal court to overturn or vacate the arbitrator’s decision?

If Horowitz slashes the suspension to, say, 100 games, A-Rod should take that and go home.  If it’s down to 150 or more, or stays at 211 (hard to believe the latter), he will probably go to federal court.

We have no word on whether A-Rod’s lawyers pointed out the fact that Melky Cabrera, who definitely tried to obstruct MLB’s investigation (remember the phony web site?), got no additional games (he was suspended for 50) for this clear obstruction.

So, to avoid the appearance of piling games on A-Rod, the arbitrator (if given this evidence during the hearing; we are all operating virtually in the dark here) would have to make some deduction for that alleged obstruction.

Also, the 211-games seems to be quite arbitrary; the rest of the 2012 season and all of the 2013 season.  So a further deduction there.

Plus, the arbitrator has to know that A-Rod plans to go to federal court.  While A-Rod has virtually no chance there (more on that at another time), a reduction in the suspension could be painted (or even viewed by a federal judge) as a win for A-Rod.

Hard to believe that his lawyers, even if they felt that the deck was stacked against them, would not understand that they had a much better chance at the arbitration stage to do some good for A-Rod than they will have in a federal court to either get an injunction or overturn or vacate any arbitration decision (of course, if Horowitz rules no suspension, a virtual impossibility, then A-Rod goes home happy (and fully paid) next year).

SO, IS IT THE END OF AN ERROR?

Not really, because this is the collectively-bargained for process.  But now that a light has shined on the absurdities of the process, an arbitrator testifying as a witness and then resuming his position as arbitrator, an arbitrator commenting on his own testimony publicly, a seeming breach of an ineffective “gag order” (which seemed to apply only to the poor reporters who stood outside day after day hoping for comment) and the ridiculous notion that A-Rod could have been charged with more games in a pre-testimony testimony (absurd), changes will be made to this process.

Can A-Rod go to federal court and attack the process (that certainly seems to be the plan).  Well, his lawyers can try, but if the plan is to complain about Bud Selig not testifying, they won’t win any points at all with that argument.

There are no winners here.  If Bud Selig ever takes the stand (unlikely, but, you never know), people will see why he didn’t want to; it’s a very unpleasant experience, especially with skilled lawyers.  Plus, Selig, never known for his spoken skills, will be under the gun.  This won’t be The David Letterman Show, a colossal blunder by Selig (whether he understands that or not).

So, the saga continues.  But if it winds up in federal court, Alex Rodriguez has a much bigger hill to climb as compared to the arbitration he just walked out of (literally and figuratively).

© Copyright 2013 by Steve Kallas. All rights reserved.

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