A-Rod swings, misses with lawsuit
Lester Munson [ARCHIVE]
ESPN.com
October 4, 2013
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On the fifth day of an arbitration hearing that will decide the validity of a 211-game suspension, Alex Rodriguez and his lawyers filed a lawsuit in New York City seeking monetary damages from Major League Baseball. The lawsuit, its timing and its allegations against MLB raise legal questions:

Q: Is this a valid lawsuit?

A: As a lawsuit, it does not amount to much. As a declaration of war on Major League Baseball and commissioner Bud Selig, it works well.

The timing and language of the 33-page document filed Friday by Rodriguez's three law firms eliminate any doubt about what they are trying to do. Instead of simply and professionally presenting their arguments and evidence during the arbitration hearing and awaiting a decision under the rules that govern performance-enhancing drugs in MLB, they have made a decision to go to war.

The lawsuit and its claims of egregious misconduct by Selig, his attorneys and his investigators go beyond the typical assertions of a lawsuit that is filed to intimidate. It is a clear signal that Rodriguez and his legal team have abandoned any hope of settling with MLB on a lesser suspension and have resolved to go to any length in their attempts to embarrass MLB and preserve a fraction of the Rodriguez legacy.

Q: Rodriguez claims that MLB investigators and lawyers abused the court system, that they have leaked information to the media and that they bought evidence to use against Rodriguez. Doesn't that kind of misconduct produce a valid lawsuit?

A: No. Even if you assume that the Rodriguez lawsuit is accurate in its allegations -- including a remarkable claim that MLB paid $150,000 for Biogenesis documents in a Fort Lauderdale, Fla., restaurant -- the lawsuit falls short.

The legal theory behind the suit is known as "tortious interference." The idea is that the misconduct of MLB lawyers and investigators somehow caused damage to Rodriguez and that he should be compensated for that damage. The misconduct "interfered" with his ability to play baseball, collect his mammoth contract with the Yankees and continue to earn endorsement money from Nike, Pepsi, Wheaties and Colgate.

If legal theories were to be ranked by their validity and strength, "tortious interference" would be at the bottom. If you want to sue someone and have no legitimate basis for suing them, you use "tortious interference" as the theory.

Q: If Rodriguez is willing to go to court with his claims, doesn't that show that he has been the victim of MLB misconduct?

A: No, for two reasons. First, if Rodriquez really wanted to present his grievance in a public court action, he would have said that MLB's misconduct must be stopped immediately with an injunction. If he asked for an injunction, he would be in court in a matter of days. He did not ask for an injunction. He does not want his assertions tested in court in a public hearing on an injunction. He is asking instead for compensatory and punitive damages. He wants money.

By asking for damages instead of an injunction, Rodriguez makes certain that he can file his lawsuit and not worry about any court examination of his assertions. The trial of a damages case does not begin in a matter of days. It does not begin in a matter of months. It arrives after two or three years. Rodriguez and his attorneys will not be presenting these allegations in open court anytime soon.

Second, the filing of the lawsuit allows him to make his allegations under the protective shield of the court system. He has now put his complaints in a form that we in the media can use, and he need not worry about any repercussions. The filing of the case allows him to state in detail what he thinks MLB has done to him without any immediate testing of the accuracy of his story.

Q: What about his claims that MLB is violating its collective bargaining agreement by leaking information to the media?

A: In addition to declaring war on MLB, Rodriguez and his lawyers filed the lawsuit to try to stop the leaks. They are convinced that Selig and others have been dropping information to reporters and others in an effort to smear Rodriguez. They have strong evidence from a radio interview of the great columnist Bill Madden on the Mike Francesca show in New York and from Selig's ill-advised appearance on David Letterman's show. If the lawsuit accomplishes anything, it may end the leaks that have marked MLB's investigations of Rodriguez and Biogenesis.

Q: Rodriguez claims that MLB's lawyers and investigators have been bribing witnesses, paying for evidence and posing as police officers to obtain information? If he is right, what happens?

A: The Rodriguez lawyers will use all this information in the arbitration already underway. It may help them in some small ways. In the Ryan Braun arbitration, a similar technique was used. David Cornwell, who led the Braun defense and is part of the Rodriguez defense, was successful in showing that the evidence against Braun (a urine sample) was collected improperly. It did not mean that Braun did not use performance-enhancing drugs, but it did mean that he won the arbitration and eliminated his first suspension.

Cornwell and the other attorneys are trying a similar maneuver in the Rodriguez arbitration. They want to show that the evidence from Biogenesis was improperly collected. Maybe some of it was collected in unusual ways.

The problem for Rodriguez is that there is no written protocol that applies to the Biogenesis evidence that is anything like the step-by-step protocol that governs urine collection in MLB. MLB's lawyers and investigators are free to try to collect Biogenesis evidence with lawsuits, subpoenas, interviews and investigation. The conduct of the MLB lawyers and investigators may be a bit embarrassing, but it will not have the same effect as the mistakes made by the urine collector in the Braun case.

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