Frisbetarian said:
To cross-quote from one of the other Rodriguez threads:
Dick Pole Upside said:
Arb Ruling 162 Games for ARod
- Thread starter 67WasBest
- Start date
To cross-quote from one of the other Rodriguez threads:
Wouldn't any sox player associated with Bosch have come up as part of the investigation? Wouldn't Bosch be asked my MLB to name everybody? Why would Bosch not tell on everyone?
If there's knowledge Sox players using PEDs, it would likely be from another source than Bosch. Which would implicate ARod more, cut into the I didn't use/no positive test argument.
I guess it's possible Bosch was involved with Sox players who didn't get their names on any lists and were not implicated by Bosch verbally. That would seem unlikely.
Maybe the Galea guy? But making such allegations points the finger right back at ARod.
If there's knowledge Sox players using PEDs, it would likely be from another source than Bosch. Which would implicate ARod more, cut into the I didn't use/no positive test argument.
I guess it's possible Bosch was involved with Sox players who didn't get their names on any lists and were not implicated by Bosch verbally. That would seem unlikely.
Maybe the Galea guy? But making such allegations points the finger right back at ARod.
UPDATE, 10:45 p.m.: Tacopina, via an email to the Globe, denied he was alluding to Ortiz in his comments. But he would not say who he was referring to.
It is unclear what other Boston athlete fits the description given by Tacopina.
http://www.boston.com/sports/baseball/redsox/extras/extra_bases/2014/01/a-rod_attorney_casts_aspersions_on_ortiz.html
It is unclear what other Boston athlete fits the description given by Tacopina.
http://www.boston.com/sports/baseball/redsox/extras/extra_bases/2014/01/a-rod_attorney_casts_aspersions_on_ortiz.html
Probably won't be any actual findings made along those lines in the arbitration. Usually, the standard is very deferential to sustain an arbitration award. I'm not sure what the standard is for arbitration under the labor laws, but usually you need to show, with respect to facts, only that arbitrator's decision is supported by some evidence, and for legal rulings you just have to show that the arbitrator didn't manifestly disregard the law.
If a potentially juicy document turns up or something, prosecutors could subpoena -- assuming anyone has the balls or inclination to pursue an athlete PED case after Bonds and Clemens.
This was pretty helpful, thank you!
If I understand this, they won't actually have to show all of their evidence in court (if we get there)? Just enough to show that there was evidence for the arbiter to rule on (and that he didn't breach anything or break the law on that ruling)?
And that's a great point about Clemens and Bonds. I would imagine most districts wouldn't wanna touch this with someone else's pole.
Maybe former Red Sox players who are "God-like in Boston" that A-Rod might know information about. Pedro, Nomar.
soxhop411 said:
Some observations:
- Tacopina would have to be mind-blowingly stupid to not understand that his comments would be understood as identifying Ortiz as a player using PEDs.
- Tacopina is many things. Stupid is not one of them.
- Tacopina has been working with A-Rod very closely for six months or so. Every step of this process has been orchestrated. It defies belief to think that he made that comment without explicit approval from A-Rod.
Maybe former Red Sox players who are "God-like in Boston" that A-Rod might know information about. Pedro, Nomar.
Or maybe Manny? The guy who did actually apparently go to Bosch?
Or maybe Manny? The guy who did actually apparently go to Bosch?
Skeesix said:
I think if you look at what Tacopina actually said it's not a former player, and Manny would not be "news" in any case.
soxhop411 said:
They never said another Sox player. Tom Brady's gigantic hands and Chara's 8 foot tall human growth hormone imbalance say hello.
Honestly, it's much more enjoyable to watch professional sports if you just assume everybody is on some sort of PED, and therefore everyone's on a level playing field.
Jaylach said:
This may be a more detailed answer than you want, but here's essentially how it works. The court in which A-Rod has filed his papers is a "district court," which means it's a trial level court. But that's confusing here. Trial courts usually hold trials, with juries, and find facts, and issue verdicts. This is not that kind of case. Sometimes, trial level courts actually act like appellate courts -- that is, they review what another court or tribunal (in this case an arbitrator) has done.
When you're a reviewing court, your job is usually quite different from the original court. It's not (at least usually not) a "do over." Instead what it is is a chance for the loser in the lower court to come to you and say, "hey this was wrong, and here's why." That's what A-Rod has done here. The papers he has filed seek to "vacate" the arbitrators' award.
Depending on the kind of case and how it was decided, reviewing courts don't attempt to go back and re-do everything the lower court did. You have to pick your issues and say here are a couple of points where I think a mistake was made. Depending on what your arguments are, and the way the lower court decided things, the reviewing court will give certain deference to the lower court. (The level of deference and the justifications for deference are the subject of a lot of law that has developed over a long time.) So, for example, a reviewing court will almost never second guess a lower court's or arbitrator's view of credibility of a witness -- because the arbitrator actually got to sit in the same room with a witness and maybe see him sweat or something, etc. In reviews from arbitrations, the level of review is very deferential -- on the ground that arbitration is supposed to be an alternative to court and if we're just going to retry everything in court why bother.
So, that's a long intro to the answer to your question. When a court is engaging in deferential review, it almost always takes no new evidence. The question is not "what are the facts"? The questions is "based on what was given to the arbitrator, was his decision reasonable, even if other people might disagree"? It would hardly be fair to reverse an arbtirator -- say "you got this wrong" -- by considering evidence that the arbitrator didn't even have a chance to consider. So, all the district court is going to do here -- most likely -- is look at the evidence that already was presented (documents and transcripts of witnesses) and decide whether a reasonable person looking at that evidence might do what the arbitrator did. Even if the judge thinks he would have done something different, that's not the standard. He has to affirm. So, the only evidence that MLB will produce here are the pieces that they already provided in arbitration to show the court that there was enough to sustain the arbitrator's award. In an appeal context, you can't give the judge 10,000 pieces of paper, so you usually end up fighting over just a few key documents or bits of testimony; thus the notion that any new evidence that would make a prosecutor take notice might come out is very unlikley.
DennyDoyle'sBoil said:
Caveat: IANAL. But I have been a party to several arbitration proceedings, including one that we later moved to federal court, so I am familiar with some of the issues here.
With that said, I don't believe that you have correctly framed what the court's role is.
The arbitration is the product of a collectively bargained agreement. Therefore, the court will not review the decision on the merits. (Meaning - they are not likely to even hear arguments over whether the decision was reasonable.) It will only review whether the process followed what was laid down in the CBA. If the answer is yes, then the court should deny the filing and A-Rod will be stuck.
I believe that A-Rod's only chance to have this heard by the court is if he convinces the judge that MLB and the MLBPA did not follow the process or that the process itself was fraudulent. (My understanding is that fraud is what A-Rod alleges in his filing.)
If A-Rod is successful, the judge will vacate the arbitrator's finding. But I would not hold my breath. It's a significant burden.
Except, of course, that the League and Union have an arbitration process to prevent such things.
reggiecleveland said:
There are a lot of things wrong with this article. Sounds like a myopic grad student wrote this.
In the first place, there was physical evidence - texts and records.
Secondly, it's pretty common for fact-finders to infer facts from other facts - a good example is when an officer testifies in court that the green leafy substance he took from some teen looks like MJ, smells like MJ, and was packaged in a way that's consistent with MJ sales.
Lastly, this is far from a "thoughtcrime" - ARod hired and paid Bosch. Bosh met with him and gave him PEDs over a year plus period. *Could* they all have been placebos? Possibly. Is there a 60% chance that they were actual controlled substances? Absolutely.
Average Reds said:
Good summary. The upcoming process will not evaluate whether or not Horowitz made a good decision, it will judge whether or not he followed the proper protocol.
From what I have heard on interviews with legal experts, here are the areas where ARod's team will be focusing on:
1. Whether or not Selig needed to testify. Since the player's union was fine with Manfred representing MLB, this will be a tough one to pursue after the fact. This is probably a major reason why the MLBPA was also sued.
2. Whether or not it was permissible for Bosch to take the 5th. Since he was the primary witness, ARod's legal team will assert that they couldn't properly cross examine him.
3. Whether Manfred was a proper representative for MLB, since he was also sitting on the arbitration panel. Conflict of interest.
I've heard predictions of 0% to 50%, in regards to ARod's chances to get the decision overturned. Imo, the key to ARod's strategy is to convince the judge that the union didn't give him the proper protection in the 3 areas above. But by doing so, he has made himself a lot more enemies.
And here comes the scorched earth defense, and the end of any Sox fan support of Arod and his lawyer.
Joe Tacopina told @ESPN_Colin he did not want to name other players accused of PED use, "but some of them are God-like in Boston right now."
Trot Nixon?!
Joe Tacopina told @ESPN_Colin he did not want to name other players accused of PED use, "but some of them are God-like in Boston right now."
Trot Nixon?!
Has this been posted yet? Most potent combination of PEDs ever
http://espn.go.com/new-york/mlb/story/_/id/10297946/alex-rodriguez-doping-plan-most-potent-ever-seen-usada-says
http://espn.go.com/new-york/mlb/story/_/id/10297946/alex-rodriguez-doping-plan-most-potent-ever-seen-usada-says
As for Manfred's role, footnote 1 of the opinion says that the parties "past-practice" is to allow the party-arbitrators (the 3rd arbitrator was from the Union) to testify. Makes it a pretty tough row to hoe for Arod to contest it.
From what I understand, Bosch only invoked the 5th amendment with respect to questions about his own use of cocaine. First of all, I'm not sure that information is terribly relevant, as it does not go to his credibility. Put another way, if this was a criminal prosecution, and Bosch were given a deal by the prosecution for cocaine charges, it would be relevant to his credibility as a motive to lie about ARod. But no court is going to accept, "he was a drug user and dealer, that in itself is evidence of lack of credibility" as a strong argument. In any event, Horowitz took into account the fact that Bosch was, in fact, a drug dealer (he even cited the Vida Blue case as a precedent for relying on drug dealers' testimony). I dont see this argument going anywhere.
From what I understand, Bosch only invoked the 5th amendment with respect to questions about his own use of cocaine. First of all, I'm not sure that information is terribly relevant, as it does not go to his credibility. Put another way, if this was a criminal prosecution, and Bosch were given a deal by the prosecution for cocaine charges, it would be relevant to his credibility as a motive to lie about ARod. But no court is going to accept, "he was a drug user and dealer, that in itself is evidence of lack of credibility" as a strong argument. In any event, Horowitz took into account the fact that Bosch was, in fact, a drug dealer (he even cited the Vida Blue case as a precedent for relying on drug dealers' testimony). I dont see this argument going anywhere.
melonbag said:
Slight nit, but while I get the spirit of the point being made, since we're trying to nail this down with greater precision, this language would only apply to a governmental legal proceeding, yeah? I mean, Bosch didn't have to talk to the MLB at all as they have no real power over him; couldn't he just as easily have said, "Pound sand"?
I'm wondering if some of this is just an attempt to cloak the process in greater legalsticosity to make everything seem more legit. I've found this taking the 5th stuff pretty weird in that regard, so if anyone could explain to me if I'm missing something I'd much appreciate it.
melonbag said:
A-Rod was already unloved by the MLBPA. How big is the downside of suing them?
His odds of getting the arbitral decision vacated are slim, but the massive upside and limited downside make it worth a try.
Reverend said:
When you invoke the 5th while under oath, I'm pretty sure that in most circumstances, the government can't even bring it up in front of a jury. Simply denying something in a civil proceeding (under oath) would be something that could be brought up to a jury.
However, since it goes to the ultimate issue of guilt, I'm not sure if the sequence "Q: Have you used cocaine? A: No." would ever be put in front of a jury anyway. The prosecution wouldn't do it, and the defense couldn't do it since it would be self serving hearsay. Refusing to answer the question or becoming angry "pound sand" might be useful to a prosecutor.
Regardless, Bosch may have been acting under advice or on his own. (Many people wrongfully invoke the 5th - probably because it's misidentified as a fundamental American right "not to answer any question at any time." No such right actually exists.)
Oddly enough, even if he admitted it, Bosch couldn't have been charged under FL law - there's a corpus problem.
Average Reds said:
You can argue more than just procedure in seeking to vacate an arbitration award. Just by way of example -- if an arbitrator followed all the procedures in the bargained agreement, took evidence pristinely, and complied with all requirements in terms of issuing a decision, but actually decided to resolve the case by flipping a coin, you could successfully challenge the award (if you could prove it) even if the procedures were silent about how the arbitrator was to make a decision.
The federal arbitration act sets forth 4 grounds for vacating an award: (1) corruption; (2) partiality, (3) "misconduct" by the arbitrators in, among other things, "refusing to hear evidence pertinent and material to the controversy," or "any other misbehavior by which the rights of any party have been prejudiced," or (4) arbitrators exceeded their powers or "so imperfectly executed them, that a mutual, final and definite award upon the subject matter submitted was not made." 9 U.S.C. sec. 10. There is a fifth ground that is not in the statute, but has been made up by judges -- "manifest disregard of the law." Interestingly, the Supreme Court not long ago suggested that "manifest disregard" is not in the statute so shouldn't be considered. Rather amazingly, lower courts have by and large ignored that decision and still apply this standard. It's a bizarre act of judicial disobedience. Judges don't like being told they are powerless, and, by and large, if they are pissed off about an arbitration award, they will usually find away to pay lip service to the section 10 requirements and reverse it. None of the five grounds for overturning an arbitration award refer to the "merits," but a good lawyer finds a way to slip arguments about the merits in there under some of the slippery language -- imperfect execution of arbitrator powers, or "other misbehavior." Failure to take "pertinent evidence," is basically an invitation to argue the merits in a way -- you turn it into an argument about evidence you would like to have put on but couldn't, and then make all kinds of extravagant claims about what the evidence would have demonstrated.
You're correct, though, that the merits is, by and large, not supposed to be reconsidered. And the "substantial evidence" standard I discussed above is for reviewing administrative law decisions, not arbitration awards -- I was trying to use it to explain what deferential review means. But I confused matters more than I should have.
One important caveat -- The standards of review of arbitration decisions under the LMRA is a very complicated subject and I only know the basics. If you're legally inclined, here's a good law review article about it. http://www.hnlr.org/print/wp-content/uploads/2008/09/leroy-feuille.pdf Above, I discussed the FAA, but the FAA does not -- technically speaking -- apply in the LMRA context. Many years ago, the Court held essentially that courts must make up their own law about the grounds for permitting challenges to arbitration awards under the LMRA. So, it's kind of the wild wild west, but most courts just default to the FAA standards, as modified as necessary to protect some particular labor/management relationship issue.
Rovin Romine said:
Thank you. I've been looking for a nice, concise way to frame Deadspin's take on this issue and you nailed it. Deadspin now has a very predictable formula on any given story:
1.) Predict what ESPN talking heads will say
2.) Take the complete opposite stance
3.) Ignore any and all nuance
4.) Say "shit" and "fuck" a lot
5.) Page views!
This guy. He just doesn't know when to shut the fuck up. Calls his suspension a "timeout". This fucking guy.
http://espn.go.com/new-york/mlb/story/_/id/10302554/alex-rodriguez-new-york-yankees-speaks-media-first-season-long-suspension
http://espn.go.com/new-york/mlb/story/_/id/10302554/alex-rodriguez-new-york-yankees-speaks-media-first-season-long-suspension
mauidano said:
From the article:
Our Exciting Serialized Production: "The Tale of Alex Rodriguez, Douchebag!"
We have previously featured:
Chapter 7: "I Became a Yankee Douchebag"
Chapter 8: "Success as a Cheating Yankee Douchebag"
Chapter 9: "How I was Caught Cheating and Acted Like a Douchebag."
Chapter 10: "Douchebaggery in 2014 - the Interlude."
And now:
Chapter 11: "Return of the Douchebag."
As A-Rod is now suing them, does the MLPA have any recourse against him? Do they have to continue to represent him or can they kick him out of the players association?
I think the short answer is "no."Section30 said:
His inclusion of the PA in his lawsuit for "failing to adequaltely represent him", is, if not a strict jurisdictional prerequisite, a formality in the context of suing to overturn an arbitration award resulting from collectively bargained Union process. The gist of it is something like: "as a member of the Union, the player essentialy cedes many employment rights he would ordinarily possess as an individual to the Union. (That's why its called 'collective bargaining.') So in order to overcome the presumption that, as a Union member, he was represented by the Union and received everything to which he was entitled as a member ofthe union, he has to allege the the Union failed him."
I think there are other practitioners here are are more finely versed in this stuff, but the bottom line is that suing the Union should not *necessarily* be looked at as some sort of evidence of a fallout. Perhaps an anology could be back when the House Speaker Foley filed suit to get something done in his home state of Washington. The suit was necessarily titled "Foley vs. Washington," and the ads that ran against him (and defeated him) turned that into a giant negative against him, when that wasn't really the case. ("He's suing US!")
Again, I may not have it *exactly* right. He may not be *required* to sue the Union in order to proceed, but, depending on the precise countours of his suit against MLB, he may have to demonstrate that the Union failed him, and thus he should be allowed to proceed on matters that are seemingly within the exclusive province of the collective bargaining structure. Naming the Union as a defendant would, in that instance, give him more access to evidence than he would have if the Union was simply a "witness" (for lack of a better term).
The Federal Arbitration Act and most state acts grant the arbitrator the power to compel witnesses to testify by subpoena. And, typically speaking, privileges like the 5th Amendment need to be asserted in the earliest proceeding to avoid being waived.Reverend said:
That what you were looking for?
joe dokes said:
This is essentially correct. To prevail against MLB, he has to prove a breach of the duty of fair representation by the MLBPA as well as a breach of the CBA by MLB. He doesn't have to name the MLBPA as a party to do so, but this lawyers obviously see advantages to doing so.
I felt pretty strongly that the arbitrator would reduce the suspension to some extent. Arod has no chance in federal court to prove a breach of contract/breach of duty of fair rep claim.
The Arbitrator did reduce the suspension from 216 down to 162 .. a fact no one seems to have mentioned.SaveBooFerriss said:
Myt1 said:
Yep, and thank you. And as RR implied, I totally forgot about the issue of the proceedings being introduced into evidence in a legal proceeding which is pretty dumb considering ARod is at least claiming to be trying to do just that.
I didn't realize arbitrators had that kind of power though. Interesting. Nothing like blurring the lines between the state and private enterprise...
Yeah, I think that's pretty much arbitration generally. Laudable goals, but I'm generally not a fan of the implementation. .
Reverend said:
I'm not sure that's right. Or at least the context needs to be clear.
Arbitrators have the power to compel testimony, but I believe that power only extends to the parties who have the dispute. And there are no criminal penalties for ignoring the subpoena - there's just an incredibly high probability that you will be on the losing end of the decision if you ignore the arbitrator.
On the other hand, testimony in an arbitration case can be used for a criminal referral - I used this as leverage in one of the arbitration cases I managed - so no one waives his/her right to be silent. Although as Myt1 says, that right must be asserted properly. (Can't testify to some of the facts and then dummy up when it becomes inconvenient.)
Average Reds said:
Actually, from a constitutional perspective, you could. The arbitrator can't jail you. I'm pretty sure that any monetary sanctions have to be spelled out in the arb agreement (or in whatever set of rules controls any particular arbitration). However, as you pointed out, the arbitrator may just rule against you if they think you're "hiding" behind the 5th.
In terms of "real" courts: the 5th allows a defendant not to testify, however, once they take the stand they must answer any question on any subject.
If you're a mere witness in a criminal or civil proceeding, you can be compelled to testify against another party, but may assert your 5th amendment right selectively (for both the issue at hand, and whatever else you might otherwise implicate yourself in.) You can also be compelled to turn over written records, documents, video, handwriting samples, fingerprints, a DNA sample, etc, as these are not considered to be "testimony." You can even be compelled to testify in a way that incriminates yourself if you've been granted "transactional immunity" - which is sometimes a cold comfort, since while your testimony can't be used against you, the authorities now have a clear theory of how you may be involved. If they can "independently" prosecute you with other evidence, it's considered fair game.
While, I haven't looked over my 5th case law in a bit, I'm pretty sure you can be held in contempt if you invoke the 5th and it's later found to be a sham. (The example I'm thinking of was someone invoking the fifth, then in a retrial, wanting to testify that they weren't involved at all, but someone else was.)
And here comes the scorched earth defense, and the end of any Sox fan support of Arod and his lawyer.
Joe Tacopina told @ESPN_Colin he did not want to name other players accused of PED use, "but some of them are God-like in Boston right now."
Don't worry... 'bout a thing...
Joe Tacopina told @ESPN_Colin he did not want to name other players accused of PED use, "but some of them are God-like in Boston right now."
Don't worry... 'bout a thing...
Good stuff here:
"On a conference call of perhaps 40 players and board members held Jan. 13 from 4:30 p.m. to 6 p.m., outraged union members repeatedly requested that Rodriguez be expelled, sources said. Following a roll call of players present on the line, according to one participant and another familiar with the call, the first player to speak asked bluntly: Can we kick him out of the union?
Advised by union leadership that was not possible, more players nonetheless expressed the same opinion. Not a single member defended Rodriguez, one player said, in a forum where there are frequent disagreements."
http://sports.yahoo.com/news/mlb-players-association-would-expel-a-rod-if-it-could-171857810.html
"On a conference call of perhaps 40 players and board members held Jan. 13 from 4:30 p.m. to 6 p.m., outraged union members repeatedly requested that Rodriguez be expelled, sources said. Following a roll call of players present on the line, according to one participant and another familiar with the call, the first player to speak asked bluntly: Can we kick him out of the union?
Advised by union leadership that was not possible, more players nonetheless expressed the same opinion. Not a single member defended Rodriguez, one player said, in a forum where there are frequent disagreements."
http://sports.yahoo.com/news/mlb-players-association-would-expel-a-rod-if-it-could-171857810.html