Tahlequah Daily Press

Sports

January 14, 2014

A-Rod sues MLB, union to overturn drug ban

NEW YORK — Alex Rodriguez sued Major League Baseball and its players' union Monday, seeking to overturn a season-long suspension imposed by an arbitrator who ruled there was "clear and convincing evidence" the New York Yankees star used three banned substances and twice tried to obstruct the sport's drug investigation.

As part of the complaint filed in federal court in Manhattan, Rodriguez's lawyers made public Saturday's 34-page decision by arbitrator Fredric Horowitz, who shortened a penalty originally set at 211 games last August by baseball Commissioner Bud Selig for violations of the sport's drug agreement and labor contract.

Horowitz, a 65-year-old making his second decision as baseball's independent arbitrator, trimmed the discipline to 162 games, plus all postseason games in 2014.

"While this length of suspension may be unprecedented for a MLB player, so is the misconduct he committed," Horowitz wrote.

Horowitz concluded Rodriguez used testosterone, human growth hormone and Insulin-like growth factor-1 in 2010, 2011 and 2012 in violation of baseball's Joint Drug Agreement. He relied on evidence provided by the founder of the now-closed Biogenesis of America anti-aging clinic in Florida.

"Direct evidence of those violations was supplied by the testimony of Anthony Bosch and corroborated with excerpts from Bosch's personal composition notebooks, BBMs (Blackberry messages) exchanged between Bosch and Rodriguez, and reasonable inferences drawn from the entire record of evidence," Horowitz wrote. "The testimony was direct, credible and squarely corroborated by excerpts from several of the hundreds of pages of his composition notebooks."

While the original notebooks were stolen, Horowitz allowed copies into evidence.

Rodriguez's suit accused the Major League Baseball Players Association of "bad faith," said its representation during the hearing was "perfunctory at best" and accused it of failing to attack a civil suit filed by MLB in Florida state court as part of its Biogenesis investigation.

His lawyers criticized Michael Weiner, the union head who died from a brain tumor in November, for saying last summer he recommended Rodriguez settle for a lesser penalty if MLB were to offer an acceptable length.

"His claim is completely without merit, and we will aggressively defend ourselves and our members from these baseless charges," new union head Tony Clark said in a statement. "The players' association has vigorously defended Mr. Rodriguez's rights throughout the Biogenesis investigation, and indeed throughout his career. Mr. Rodriguez's allegation that the association has failed to fairly represent him is outrageous, and his gratuitous attacks on our former executive director, Michael Weiner, are inexcusable."

The suit also claimed the MLB engaged in "ethically challenged behavior" and was the source of media leaks in violation of baseball's confidentiality rules.

Rodriguez's lawyers said Horowitz acted "with evident partiality" and "refused to entertain evidence that was pertinent and material." They faulted Horowitz for denying Rodriguez's request to have a different arbitrator hear the case, for not ordering Selig to testify and for allowing Bosch to claim Fifth Amendment rights against self-incrimination in refusing to answer questions during cross-examination.

They also said Horowitz let the league introduce "unauthenticated documents and hearsay evidence ... obtained by theft, coercion or payment," wouldn't allow them to examine Blackberry devices introduced by MLB and was fearful he would be fired if he didn't side with management.

Rodriguez asked the court to throw out Horowitz's decision and find the league violated its agreements with the union and that the union breached its duty to represent him. The case was assigned to U.S. District Judge Edgardo Ramos.

Supreme Court decisions have set narrow grounds for judges to vacate arbitration decisions, instances such as corruption or not following the rules agreed to by the parties.

The three-time AL MVP admitted five years ago he used performance-enhancing substances while with Texas from 2001-03, but the third baseman has denied using them since. MLB's Biogenesis investigation was sparked after the publication of documents last January by Miami New Times.

Bosch agreed in June to cooperate with MLB and testified during the hearing, which ran from September until November. Rodriguez's lawyers attacked his credibility because of that deal, which included reimbursement by MLB for costs of lawyers, up to $2,400 daily for security, insulation from civil suits and a promise to tell law enforcement he was cooperative.

"The benefits accorded to Bosch under that arrangement did not involve inducements that the panel considers to be improper," wrote Horowitz, who chaired a three-man panel that included MLB Chief Operating Officer Rob Manfred and union General Counsel David Prouty.

Horowitz cited the credibility of Bosch's "unrebutted testimony — testimony which was corroborated by substantial documentary evidence," and he described the method Bosch and Rodriguez communicated in code, referring to banned substances as "food."

"Once when Bosch sent a message telling Rodriguez that he was going to pick up Rodriguez's 'meds,' Rodriguez replied 'Not meds dude. Food,'" the arbitrator wrote.

Rodriguez did not testify in the grievance, walking out after Horowitz refused to order Selig to testify.

At a brief hearing Monday, MLB said it would not discipline Rodriguez for including the decision in his lawsuit. U.S. District Judge William H. Pauley III brushed aside concerns from the union about confidentiality concerns.

"Given the intense public interest in this matter and Commissioner Selig's disclosures last night on '60 Minutes,' it's difficult to imagine that any portion of this proceeding should be under seal," Pauley said.

The arbitrator noted Bosch and Rodriguez exchanged 556 text messages and had 53 telephone calls in 2012. He said all records of text messages were produced by Bosch, while lawyers for Rodriguez said the Blackberry he used to communicate with Bosch was deactivated last March and Rodriguez no longer had it.

The arbitrator said Rodriguez instructed Bosch in one message to "erase all these messages."

Horowitz recounted how Rodriguez was introduced to Bosch after a Yankees game in Tampa, Fla., in July 2010 by A-Rod cousin Yuri Sucart, who knew Bosch through Jorge "Oggi" Velazquez.

Horowitz wrote MLB was justified in citing violations of the collective bargaining agreement because Rodriguez "played an active role in inducing Bosch to issue his own public denial on Jan. 29" and "attempted to induce Bosch to sign a sworn statement on May 31" saying he never supplied the player.

In determining the length of the penalty, Horowitz cited a 2008 decision in a grievance involving Neifi Perez in which arbitrator Shyam Das ruled "separate uses are subject to separate disciplines." He said under the discipline system for positive tests, Rodriguez would be subject to at least 150 games for three violations of 50 games. Still, Horowitz thought Selig's initial penalty was too severe.

"A suspension of one season satisfies the structures of just cause as commensurate with the severity of his violations," he wrote.

Rodriguez's lawyers claimed at worst the case should involve one first violation with a penalty of 50 games, and they said including the 2014 postseason was beyond the scope of Selig's original discipline. Horowitz rejected Rodriguez's argument that the lack of a positive test was proof of innocence.

"It is recognized Rodriguez passed 11 drug tests administered by MLB from 2010 through 2012. The assertion that Rodriguez would have failed those tests had he consumed those PES as alleged is not persuasive. As advanced as MLB's program has become, no drug-testing program will catch every player," Horowitz wrote.

In Selig's notice of discipline to Rodriguez on Aug. 5, he said MLB actively is investigating allegations he received banned substances in 2009 from Dr. Anthony Galea, who pleaded guilty in 2011 to a federal charge of bringing unapproved drugs into the United States from Canada.

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