Category Archives: MLBPA

Does A Federal Lawsuit Pave The Best Path For Alex Rodriguez To Get Back Onto The Baseball Diamond?

After an arbitration panel upheld 162 games of a 211-game suspension previously levied by MLB, Alex Rodriguez sued MLB, the Office of the Commissioner of Baseball and MLBPA.  In the lawsuit brought in federal court, Rodriguez raises three claims:  breach of the duty of fair representation by MLBPA, breach of the collective bargaining agreements by MLB and vacatur of the arbitration award.  Overall, Rodriguez seeks the court to overturn the arbitration decision and award whatever other relief is just and equitable.

In the wake of MLB’s investigation into him for alleged illegal performance enhancing substance use, Rodriguez has levied most of his disfavor of the process against MLB.  Rodriguez and his legal team have publicly challenged MLB’s suspension of Rodriguez and its subsequent legal maneuvering during the arbitration process.  Surprisingly, though, in his lawsuit, Rodriguez takes a bigger swipe at a different entity: MLBPA.

The bulk of the 77-page complaint filed by Rodriguez takes aim at what he alleges to have been the union’s breach of its duty of fair representation during the grievance process.  According to Rodriguez, MLBPA refused to act upon his request that it object to MLB’s alleged breaches of the Joint Drug Agreement and Basic Agreement.  Additionally, Rodriguez requested MLBPA to intervene in and seek dismissal of MLB’s state court proceeding in Florida against Tony Bosch, the founder of Biogenesis.  According to the lawsuit, MLBPA refused to do this.  Furthermore, Rodriguez alleges that MLBPA made derogatory public statements about him and points to comments made publicly by former MLBPA executive director, Michael Weiner, in this regard.  Due to these issues, Rodriguez sought to select the arbitrator of his choosing to hear his grievance.  MLBPA denied him this request and instead selected an arbitrator of its choosing–as is normal procedure–for the three-member panel.  In his lawsuit, Rodriguez objects to this.

Under federal law, a labor union–like MLBPA–owes its members certain duties.  One of those duties is the duty of fair representation.  Under the duty of fair representation, MLBPA is required to represent the interests of all of its members without discrimination.  To show that a union acted discriminatorily, more than negligence or ineptitude in its representation of a member must be shown.  Rather, the totality of the circumstances must show that MLBPA violated its duty of fair representation by arbitrarily or in bad faith discriminating against Rodriguez in the representation of him throughout the grievance process.

In his lawsuit, Rodriguez raises allegations in an attempt to argue that MLBPA acted discriminatorily in its representation of him throughout the grievance process.  Overall, Rodriguez’s argument is that MLBPA did not want to risk its reputation and good favor with MLB and the arbitration panel in fighting Rodriguez’s case.  Rodriguez points to alleged incidences of this conduct as behavior which amounted to the requisite discriminatory conduct to be violative of the duty of fair representation.

Given the claims Rodriguez’s lawsuit brings and the goals of the lawsuit, the question becomes, did Rodriguez bring his claims in the right forum?  While Rodriguez names as defendants MLB, MLBPA and the Office of the Commissioner of Baseball, a review and understanding of applicable precedent demonstrates that the party against whom he has the strongest claim is MLBPA.  This is due to the fact that in labor disputes, courts rarely intervene and/or find in the favor of a plaintiff unless an employer (here, MLB and the Officer of the Commissioner of Baseball) act arbitrarily or capriciously or in disregard of their own rules or the law.  Although Rodriguez has asserted that MLB and the Office of the Commissioner of Baseball have acted in disregard of the Joint Drug Agreement and Basic Agreement, given the flexibilities present in those documents, his arguments against these parties are arguably his weakest.  Negating the argument that MLB and the Officer of the Commissioner of Baseball acted arbitrarily or capriciously is MLB’s allegedly uncovering of significant evidence that Rodriguez allegedly used performance enhancing substances.  The evidence MLB allegedly holds and legal precedent make it unlikely that a court will find against MLB and the Office of the Commissioner of Baseball.

That then, leaves the MLBPA.  Given the duty of fair representation, it appears that the strongest claims in Rodriguez’s lawsuit are those raised against MLBPA.  As such, was a federal lawsuit the best route for Rodriguez to bring these claims?  It turns out that another avenue may have presented a more timely disposition of Rodriguez’s claims.  That avenue is an unfair labor practice filing alleging that MLBPA breached its duty of fair representation by discriminating against Rodriguez throughout his grievance against MLB.

Due to Rodriguez’s main goal in bringing his lawsuit appearing to be returning to the baseball diamond, time is arguably of the essence when it comes to the resolution of his claims.  Given the motions and discovery processes in federal court, it could easily be over a year before Rodriguez’s lawsuit is resolved.  An unfair labor practice, however, could see disposition in a more timely manner.  The issue with this route, though, is the remedies available to Rodriguez.  The filing an unfair labor practice charge against MLBPA would unlikely bring about the result Rodriguez is seeking of having his MLB suspension shorted so that he can return to play this year.

While the legal minutiae is tough to sort through in this case, one thing is certain:  The road for Rodriguez back to the baseball diamond is one that will span over a year.  Whether serving a suspension or battling in court, this matter is not one that will disappear soon.

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Filed under Civil Lawsuits, MLB, MLBPA

Shyam Das And The NFLPA’s Grievance Hearing for the Saints Bounty Sanctions

Today, an arbitrator will hear one of two grievances filed by the NFLPA in the wake of the sanctions handed down by the NFL upon players allegedly involved in the Saints bounty program.  This particular grievance argues that under the new collective bargaining entered into between the NFLPA and the NFL in August 2011, the NFL agreed to waive all pre-existing claims against players.  As such, the NFLPA is arguing that the NFL cannot punish Saints players for their alleged involvement in a bounty program that took place before the signing of the new collective bargaining agreement.  The facts related to the program and the associated penalties will largely sway the arbitrator’s decision of whether to rule in favor of the NFLPA’s grievance.  However, it is possible that the outcome of the arbitration hearing will weigh more upon the identity of the arbitrator.

The arbitrator hearing this grievance is Shyam Das.  While most not heavily involved in the sports or legal worlds were previously unfamiliar with Das, he gained extreme notoriety in recent months when he overturned MLB’s 50 game suspension of National League MVP Ryan Braun.  While details of the Braun decision have not been made public, it is believed that Das overturned that suspension due to a chain-of-control issue, wherein Braun’s urine sample was not handled properly per MLB drug testing guidelines.

In the wake of the Braun case, many have questioned whether Das overturned the suspension based upon a mere technicality.  However, what is arguably more important to consider in this instance, is the fact that Das was fired by MLB as its arbitrator.  While Das was the arbitrator for MLB and the MLBPA, either side may fire him by providing written notice to the other party.  In this case, MLB provided written notice of its dismissal of Das last week–merely one week before Das was to hear the NFLPA’s grievance related to the Saints bounty program.

MLB has declined comment as to why it chose to fire Das.  However, given the proximity of the firing to the overturning of Braun’s suspension, one could guess that it had to do with MLB’s finding that Das’ ruling on that case was inappropriate.  Therefore, the question remains, what effect does Das’ firing have on the NFLPA’s grievance?

In this instance, it is unlikely that Das will make a similarly bold ruling in the NFLPA’s grievance as he did in the Braun hearing.  Das, who has an impressive client list is already down one major client this week.  Thus, it would be fair to suspect that he will not want to rock the boat again by overturning the Saints’ player’s suspensions in their entirety.  Since the grievance he is hearing in this instance essentially asks for the overturning of the players’ suspensions in their entirety, it is unlikely that Das will find in favor of the NFLPA.

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Filed under MLB, MLBPA, NFL, NFLPA

What Ryan Braun’s Appeal Means to MLB’s Drug Testing Policy

From all accounts, Ryan Braun is a man of character.  Since reports surfaced in December that a urine sample obtained from Braun in October 2011 tested positive for elevated levels of testosterone, not a single member of the baseball community has challenged Braun’s character.  At the same time, Braun repeatedly claimed that he would be exonerated, and that he has never used performance enhancing drugs during his career.

The testaments to Braun’s character by his baseball colleagues surely boosted the player’s reputation during what could be described only as a public relations nightmare.  However, it is to be seen how the story of Braun’s positive test will affect his status in the history books.  Unfortunately for Braun, if MLB’s Joint Drug Prevention and Treatment Program were correctly applied to his situation, there would be no question as to how the story of his positive test would affect his status in MLB history.  That is because, if the policies outlined in the Joint Drug Prevention and Treatment Program were adhered to, none of us would have heard the story behind Braun’s positive test.

In the wake of a congressional investigation into the use of performance enhancing drugs by MLB players, and reports that many of the day’s biggest stars tested positive for performance enhancing drugs, MLB enacted the Joint Drug Prevention and Treatment Program.  In relevant part, the program lists which substances are banned by MLB, sets forth a testing procedure and outlines punitive measures for those testing positive for substances banned by MLB.

Arguably, however, the most relevant portion of the program’s policies for players is the section related to confidentiality.  The program’s policies state, “The confidentiality of the Players’ participation in the Program is essential to the Program’s success.”  The program then goes on to specify the confidentiality requirements of the program, which greatly limits the number of people who can be made aware of a player’s positive test.  Long story short, the program prohibits either side from alerting the media of a player’s positive test.  Such prohibition would seemingly prevent the media from disseminating information related to a player’s positive test.

By now, anyone who follows baseball is likely aware that the overturn of Braun’s 50-game suspension came as the result of his camp proving that the chain of command policy set forth within the program’s policies was not adhered to.  Some in the media have asserted that Braun was exonerated as the result of a technicality, since the specimen collector didn’t FedEx his urine sample on the same day it was collected, as required under the program, but rather, held onto it over the weekend. 

While players say that due process was upheld with this result and MLB is crying foul over the perceived technicality of the situation, what both parties should be distraught over, is the clear breach of the program’s confidentiality provision.

First and foremost, players should be greatly concerned that confidentiality was breached in Braun’s case, because of the possible negative effects the breach may have on Braun’s career.  In recent years, baseball fans have seen stars’ successes on the field be stigmatized in the wake of allegations of performance enhancing drug use.  Braun was arguably in the midst of his best season—a season in which he was named the National League’s MVP—when this all shook out.  Although his suspension has been waived, it is to be seen what lingering effects of the news that he tested positive for a banned substance remain.

MLB should be outraged that confidentiality was breached in Braun’s case, because as the policy states itself, “The confidentiality of the Players’ participation in the Program is essential to the Program’s success.”  In order for MLB to reassert itself as “America’s National Pastime,” it must continue to take a strong approach to combating drug use amongst its biggest names.  The publicity of Braun’s case arguably called into question the effectiveness of MLB’s drug testing policy.  The fact that the testing specimen of one of baseball’s biggest stars was mishandled may lead some to question whether other specimens have been similarly mishandled and potentially tainted.  In order for a program to be successful, such questions cannot exist.

Although the proper handling of testing specimens and chain of command issues are items MLB and the MLBPA must address in the wake of Braun’s appeal, the biggest issue both parties must concern themselves with is redrafting the policy so that punitive measures are put in place when a party breaches the confidentiality provision.  The program’s policy provides that, “Within 30 days of the conclusion of the World Series, the Parties will meet with the IPA, the Medical Testing Officer, and a representative from CDT regarding potential changes to the Program based on developments during the most recent year.”  Arguably, the breach of confidentiality in Braun’s case was a relevant development related to the program’s policy which occurred during the past year.  The program’s policy currently does not provide punitive measures for anyone who does not uphold the confidentiality provision.  Thus, to prevent the spectacle surrounding Braun’s situation, both sides would be well suited to begin drafting a punitive clause related to not upholding the confidentiality provision.

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Filed under Drug Testing, MLB, MLBPA