Now that Alex Rodriguez has placed a muzzle on his bulldog lawyer Joe Tacopina – though to be honest, Matt Lauer did a pretty good job of sending him whimpering to the kennel – perhaps we can get past the red herrings and histrionics and focus on the issue at hand.
How will A-Rod’s lawyers defend him where it matters, inside an arbitration hearing room?
Lawyers around baseball and on the fringe of the sport have discussed the case in great deal, bandying about hypotheticals of how best to approach what seems like a losing proposition for Rodriguez, who faces a 211-game suspension. Their insight allowed Yahoo! Sports to draw on the likeliest defenses to be posited by Rodriguez’s legal team when the appeal on the penalty begins sometime in September. It also swatted away some of the more pervasive myths about the case, some of which would seem to have great relevance but in reality lack significant merit.
Take, for example, the idea that Anthony Bosch, the man who founded the Biogenesis clinic that allegedly gave A-Rod his performance-enhancing-drug rations, will not testify at the arbitration hearing because the federal government is investigating his providing PEDs to teenagers. Most of the lawyers agreed Bosch’s testimony in an arbitration case would have no bearing on a potential criminal case, particularly because if the government wanted to subpoena the league’s notes from its initial interview with Bosch – in which he presumably admitted to selling PEDs – it could.
With Bosch’s testimony in play, then, the question becomes how to deflect what he says. Certainly Rodriguez’s team, consisting of lead attorney David Cornwell and others from the Reed Smith law firm, will hammer at Bosch’s credibility. Rodriguez did not hire private investigators to dig into Bosch’s background for no reason. Still, MLB’s retort that players later admitted use after accepting 50-game penalties bolsters the league’s case and tends to render that point moot, too.
The next obvious defense is one that would seem to hold some water: Rodriguez believed he was receiving legal supplements. Think of Bosch’s situation: When a player tests positive, Bosch likely loses him as a client. If enough test positive, players will leave in droves. Thus, it gives him great incentive to give players either placebos or minuscule doses, and if Rodriguez believed he was receiving legal supplements, he would have a far better argument to receive a lighter penalty than 211 games, the longest non-lifetime ban ever.
Moreover, the testing results back his claim. Not once in the years Major League Baseball believes Rodriguez doped, from 2009-11, did he test positive for a PED.
(And, no, Victor Conte’s claims that Rodriguez was seeking legal solutions through him have no bearing on the case or the previous argument. First off, Conte is the most notorious PED pusher in sports history. Second, Rodriguez palling around with Bill Romanowski, another longtime PED user, in search of Conte doesn’t exactly scream credibility.)
Here’s the problem with the he-didn’t-know argument, beyond the fact that lack of knowledge or fraudulence isn’t a defense: Considering the vehemence with which Major League Baseball went after Rodriguez, and knowing how careful MLB lawyers Rob Manfred and Dan Halem would be with a doping case after seeing Ryan Braun’s overturned in an arbitration hearing, the lawyers strongly believe there is evidence that ties Rodriguez to a scheme of knowing PED use. Among the emails and text messages Bosch turned over to baseball, the lawyers think, Rodriguez implicated himself. And so even if the argument itself creates reasonable doubt, self-incrimination would keep arbitrator Fredric Horowitz from considering such a case.
Surely Cornwell could dip into his bag of tricks – his chain-of-custody argument that got Ryan Braun off a 50-game suspension in 2012 was a stroke of genius – but the majority of the lawyers surveyed agreed on Rodriguez’s best strategy.
Argue the penalty.
If there is so much evidence piled up against him implicating him in drug use, arguing against use is foolish. Instead, between the arbitrariness of the penalty – 211 games has no reference point in the league’s penalty structure, though even MLB Players Association executive director Michael Weiner agreed that cases like Rodriguez’s, where there isn’t a positive test, the suspension is open-ended – and other available legal gambits, the lawyers believe there is a strong chance Rodriguez’s suspension gets reduced.
Because the suspension was levied by baseball under just cause, Rodriguez’s lawyers are allowed to compare it to past penalties. MLB’s strategy in suspending the other players involved with Biogenesis, however, was a stroke of legal trickery: in their plea bargains with the league, the players don’t admit anything. They simply agreed to 50-game bans (and 65 in Braun’s case). Accordingly, Rodriguez cannot compare his case to the other Biogenesis players’ because their suspensions technically were not for the same thing.
Such intricacies make an already difficult case even harder to win for Rodriguez. There is some hope, however, and it rests on what’s called a continuation-of-use argument. For example, if a player uses testosterone on Monday and Wednesday, gets tested both days and comes back with two positives, he could argue that it was the same drug and he deserves to be penalized just once.
Whether Horowitz buys such an argument with years of continuous use alleged is something neither baseball nor Rodriguez’s camp knows, particularly with this being the arbitrator's first drug case. Another important factor: Rodriguez is believed to have used five separate PEDs, and past precedent from another arbitration hearing is that each drug can be treated as a separate offense. So, for example, if a player uses testosterone on a Monday and human chorionic gonadotropin on a Wednesday and gets caught in separate drug tests with each, he would receive a 50-game penalty for the testosterone and 100-game penalty for the HCG.
Rodriguez is paying his lawyers hundreds of thousands of dollars because this is not an easy case. Though one lawyer asserted MLB’s aggressive posture is bound to hurt the league inside the arbitration room, the evidence is a massive hurdle for Cornwell and his team. Tacopina has been all bark, and the lawyers believed it was poor strategy because it forced baseball into an untenable position of not agreeing to a deal for fear of looking soft – and as we know, no matter how much of a bully or Salemite it makes him look, commissioner Bud Selig does not want to look soft on PEDs.
Perhaps Cornwell can summon up some more magic. Or maybe baseball makes a strategic error that opens up Rodriguez’s chance at wriggling free. The likeliest result, the lawyers believe, is quite simple: Horowitz agrees Rodriguez used PEDs for years, admonishes him for interfering with the investigation and nevertheless reduces the suspension to somewhere in the neighborhood of 150 games, or about what he would get for two-time use.
In the meantime, as Cornwell summons up arbitration-room bombshells and MLB prepares its radioactive gear to parry them, A-Rod keeps playing, keeps producing, keeps doing what he’s done his whole career. The eye of the hurricane is its most quiet place. The damage from Alex Rodriguez is already voluminous. All he can hope is that his career isn’t next.
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