Thursday, August 1, 2013

A-Rod Weighing His A-Options

Facing a lifetime ban from baseball, which would include the forfeiture of $86 million in salary plus being officially barred from the Hall of Fame, Alex Rodriguez has undoubtedly been spending a lot of time with his lawyers.

In a case like this, Rodriguez and his lawyers would sit down and weigh his options. They would play out different scenarios identifying the pros and cons. Here are his key options:

Option 1: Dig In and Fight

Baseball has reportedly offered Rodriguez a deal: agree to be suspended and forfeit your right to an appeal, and in exchange we will only suspend you for the rest of this season and all of next season. If he agrees to that, if/when he returned in 2015 at the age of 38, he would have 3 years left at $61 million. Not too shabby.

However, if Rodriguez decides not to cut a deal, reports are that Commissioner Bud Selig will suspend him for life. On top of that, baseball will suspend Rodriguez, in part, under the Collective Bargaining Agreement (and not just the Drug Policy).

This distinction matters. If Rodriguez were only suspended under the Drug Policy, he would be able to play during his appeal (which will be heard by Fredric Horowitz). That would mean we could see him back this season playing for the Yankees. However, if MLB suspended Rodriguez under the CBA, he would not be allowed to play while his case is being appealed. Under the CBA, baseball can go this route if a player has engaged in conduct that is detrimental or prejudicial to the “best interests of baseball”, and can include things like breaking federal, state or local laws. This isn’t something baseball exercises lightly; it’s a dramatic option.

There is even the option of baseball invoking Article XI(A)(1)(b) of the Basic Agreement, which provides that Selig can make a ruling if a case involves “the preservation of the integrity of, or the maintenance of public confidence in, the game of baseball”. This is also important. If Selig exercises this option, Rodriguez’s appeal would not go to an independent arbitrator but rather back to Selig. That would all but guaranteed a loss for Rodriguez. However, Selig has advised that he won’t be doing this.

So if Rodriguez decided not to cut a deal, his next step would be to appeal his lifetime ban. That appeal would first go to Mr. Horowitz. We haven’t seen the evidence against Rodriguez. Reports however, are that it is overwhelming and substantial. It may also include things like witness tampering, interfering with the investigation and recruiting athletes to Biogenesis (allegations which Rodriguez has denied). Even with this evidence, baseball may have a difficult time getting Mr. Horowitz to uphold the lifetime ban on appeal.

The lifetime ban punishment is only for the most exceptional of circumstances, and while PED use and possible obstruction of justice charges  are very serious, generally more is needed before a player can be denied lifetime employment in baseball. This is particularly the cse for someone who has not been suspended before. Historically in baseball, it’s tough to enforce these types of bans. This isn’t breaking news, and baseball is aware of this.

So Rodriguez if appeals the ban, it may be reduced to somewhere around 150 games – which would be most of next season. But really, that’s just a guess. A lot will turn on the evidence. If it shows an extensive pattern of PED use together with substantial interference with the investigation, it could be more.

If he’s unhappy with whatever ruling the arbitrator’s makes, Rodriguez could head to court. If he did, Rodriguez would attack the credibility of those who provided the evidence, including Biogenesis founder Tony Bosch and former employee Porter Fisher. Bosch has allegedly engaged in criminal activity and would become a significant target of a Rodriguez defence. His legal team would also hope that the pressure of litigation may encourage MLB to settle on more favourable terms. However, that seems unlikely given that baseball is accustomed to litigation and is fully committed to this case.

So if he elects to fight, he first heads to arbitration (while still suspended) and then possibly off to court. Messy and long.

Option 2: Cut A Deal

The evidence against Ryan Braun was overwhelming and substantial. For that reason, he accepted a major suspension even in the absence of a positive drug test (he has the same lawyer as Rodriguez by the way). According to reports, the evidence against Rodriguez is even more overwhelming and even more substantial. There are also reports of a longstanding relationship between Rodriguez and Bosch going back a number of years.

If there is indeed very good evidence against Rodriguez, his lawyers will canvass the benefits of settlement. First, if he agrees to the deal on the table, he could be back in 2015 and still have 3 years/$61 million left on his deal.

As well, by agreeing to MLB’s terms, he will get immediate certainty as far as the length of his suspension.  In contrast, if he goes to arbitration, the length may be reduced but may still exceed MLB’s current offer. And if this somehow ends up in Court, this could take multiple years to litigate – and the entire time Rodriguez may not be able to return to baseball. So if he fights, the only certainty is uncertainty.

There is also the matter of legal fees. At $450 million, Rodriguez is the highest paid athlete in major league baseball history. So lawyer fees aren't going to be an issue.

On the flip side, if he takes the deal he will effectively be declaring his guilt. You might remember that he admitted to using PEDs for three-year period beginning in 2001. By agreeing to a suspension now, the public may well conclude that he has used his entire career. Essentially, there would be no recovering his legacy. He will be perceived as the Lance Armstrong of baseball. The problem for Rodriguez is that the legacy ship may have already sailed.

Option 3: Try Something Else.

Cricket looks like fun.

Ultimately, Rodriguez seems cornered. He is looking to pick the best option available to him under the circumstances. Not an enviable position to be in.

Indeed, rock meet hard place.

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