I have been resolving disputes for sixteen years. I even wrote a book on arbitration. So I guess to some, I’m considered an expert in the field of arbitration. I know what arbitration is about, and how it’s supposed to ‘go down’. However, what occurred in the arbitration hearing that was convened to determine whether Alex Rodriguez’ 211-game suspension will stand, raised so many concerns in my mind and the minds of many people I spoke to, that I decided to take a closer look.
In August, 2013, the MLB (Major League Baseball) suspended Yankees third baseman, Alex Rodriguez, for 211-games for alleged violations of baseball’s drug policy and labor agreement stemming from the Biogenesis of America investigation.
The MLB Players Association (the Union) filed a grievance. The hearing, which began on September 30, 2013, and ended on November, 21, 2013, involved bizarre antics and shenanigans as reported by the press. This brings me to my first point.
The most common forms of alternative dispute resolution (ADR) are arbitration and mediation. The most well-known advantage of ADR is that it is confidential. That’s why many cases (especially those involving famous people or sensitive issues, see Eddie Long post) are better resolved with ADR instead of going to court which is typically open to the public and the press. So, it was surprising when various people involved in A-rod’s arbitration hearing spoke to the press ‘on condition of anonymity.’ That defeated the main advantage of arbitration and undermined the entire process.
The next thing that struck me as odd about the hearing was the arbitrator’s refusal to grant A-Rod’s request to compel MLB Commissioner, Bud Selig, to testify at the hearing. This caused Rodriguez to storm out of the hearing and take to the airwaves where he berated Selig for refusing to “come in and face me” and complained that the entire arbitration process was flawed.
Concerning Selig’s testimony at the hearing, A-Rod’s attorneys argued that since this case is the first of its type because it involves discipline that didn’t stem from a positive test, and since it involves ‘the commissioner’s discretion and decision-making,’ the commissioner’s testimony is necessary. The MLB, countered with the argument that the MLB has the burden of proof in the case, and it has the right to select any person it wants to explain the penalty. Therefore, Rodriguez and the Union have no right to dictate how it should proceed.
A-rod does not have the right to ‘face’ Selig because the right to confront your accuser applies only to criminal prosecutions (under the 6th Amendment) and not civil cases or other proceedings. However, it is always in an arbitrator’s best interest to hear all testimony and never quell evidence. Less is not more in arbitration. It is true that another benefit of arbitration is that it is expeditious and not as drawn-out and convoluted as regular litigation. However, it’s always in an arbitrator’s best interest to ‘let everything in’ – to protect her decision from review, to allow the complainant to feel that he had his day in court, and to protect the integrity of the process by demonstrating fairness. This is especially true in this case where team A-Rod is already dropping hints that it will challenge any unfavorable decision.
If the arbitrator rules that A-Rod’s suspension stands, and A-Rod’s attorneys file a motion to vacate based on the arbitrator’s failure to compel Selig to testify, a reviewing court probably will not vacate the order for that reason alone. An arbitrator’s decision is final and a court will not vacate an arbitrator’s order for a mistake of fact or law. A reviewing court will only vacate an arbitrator’s decision for reasons such as bias, irrationality or if the arbitrator exceeded his authority. These factors are not present in this case.
So notwithstanding the wide latitude arbitrators enjoy, all arbitrators know that it’s better to err on the side of ‘too much’ instead of ‘too little.’ The cost to review an appeal to all parties (including the arbitrator) and the damage to the public’s perception of the process are way too costly to justify not compelling a witness subpoenaed by the other party to testify.
Another factor which some consider as odd is that A-Rod himself did not testify. We all know that he doesn’t have to. So maybe it’s not the fact that he didn’t testify that’s odd, but the reason he gave for not testifying. “The union has already told me that if I go on on Friday and they think I lied, they can give me, say, another 100 games, so now you’re to 311. So now we’ll appeal that. In the appeal process, I would say I didn’t do it, so now you’re up to 411, and this can go on for the next seven or eight years,” said A-Rod.
Punishment for lying under oath is not a concept that is unique to you, A-Rod. That concept applies to all testimony – everywhere. The only way to evade such punishment is to tell the truth. So while Team A-Rod has the right to decide to not put him on the stand, it appears (based on A-Rod’s own words) that the fear that he would be caught in a lie may be the real reason for that decision.
The right to settle a dispute with arbitration is a right that is bargained for between employees (union) and the employer. Arbitration is often the last resort for employees facing discipline. It is a valuable benefit because it is less expensive than litigation, therefore it levels the playing field and makes justice accessible to covered employees who may not be able to match their employers’ unlimited resources.
So employees should not lose faith in the arbitration process because of what happened at A-rod’s hearing. The fact that A-Rod disparaged the process with terms such as “kangaroo court” and an “abusive process, designed to ensure that the player fails” should not deter employees from participating in arbitration.
Consider another word that begins with the letter “A” – appalling.