By
Steve Kallas (posted by Rick Morris)
Not
that you should be surprised (these actions have been rumored for weeks, if not
months), but Alex Rodriguez, as the first week of his arbitration came to a
close, has decided (with his legal team) to file two lawsuits, one in State
Supreme Court in New York County and one in State Supreme Court in Bronx
County.
DAY 5 OF THE ARBITRATION
According
to the Daily News, A-Rod’s lawyers completed their cross-examination of Anthony
Bosch on Friday (Day 5), meaning that, essentially, the A-Rod arbitration was a
one-witness show for virtually the entire work week.
After
the arbitration, Alex Rodriguez left 245 Park Avenue at about 6
PM
and mingled with his fans (about 125 strong yesterday) for a solid 15 minutes,
signing autographs, shaking hands and posing for pictures.
While
Joe Tacopina, one of the lead lawyers for the A-Rod team, was waiting for A-Rod
to come to their SUV, Tacopina told WFAN that, “there will definitely be
another hearing day, but I can’t tell you when it is.” The Daily News, however, has reported that
the hearing will resume during the week of October 14th.
LAWSUIT
1 IN STATE SUPREME COURT, NEW YORK COUNTY
This
lawsuit, filed in State Supreme Court (remember, the “Supreme Court” in New York, unlike in other
states, is NOT the highest court in the state; in fact, it is a lower court
where lawsuits like this one are filed) in Manhattan, has A-Rod as the
plaintiff and Major League Baseball. The Office of the Commissioner, and Bud
Selig, individually, as the defendants.
It
alleges two causes of action: 1)
Tortious Interference with Prospective Business Relationships; and 2) Tortious
Interference with Existing Contracts.
The
first (tortious interference with prospective business relationships) is a very
difficult thing to prove and win. In
this instance, by definition, there is no existing contract between A-Rod and
Nike or Toyota (the two companies
named in the complaint). A-Rod would
have to show, among other things, that the defendants “intentionally and
knowingly” induced Nike and/or Toyota to not come to an
agreement with A-Rod and must also prove that the defendants did this “by wrongful
means.”
Indeed,
damages, another thing that must be proven by A-Rod, will also be difficult to
prove unless there was already a not-agreed to contract that stated, for
example, that A-Rod would be paid $1 million (just picking a number) a year for
hawking products for Nike or Toyota.
Of
the two causes of action, this one is harder to prove and more frowned upon by New York courts in general.
The
second (tortious interference with existing contracts) is more concrete,
especially because of the existing contract with the New York Yankees (the main
part of this cause of action).
The
problem here for A-Rod is that this part of the lawsuit, at a minimum, is not
“ripe” for adjudication. Whether the
defendants have attempted to interfere with A-Rod’s contract or not, A-Rod has
not been damaged $1 under his contract.
He appealed his suspension, played for the Yankees the rest of the
season and was paid pursuant to his contract.
His
arbitration is still ongoing. At the end
of it, he may be suspended for 0 games, 211 games or somewhere in between. But contractually, right now, he simply
hasn’t been damaged.
This
part of the lawsuit may be dismissed if (when?) the defendants make a motion to
dismiss the complaint, a distinct possibility in this case. The defendants
could conceivably also attempt to remove the case to federal court, where many
attorneys believe they would get a better judge, a fairer chance to defend
and/or a better jury.
LAWSUIT
2 IN STATE SUPREME COURT, BRONX COUNTY
This
lawsuit, essentially a malpractice suit relating to A-Rod’s 2012 hip injury, is
against A-Rod’s doctor (Dr. Christopher Ahmad) and the hospital where he has
privileges (New York Presbyterian/Columbia University Medical Center).
There
are three causes of action in this lawsuit.
The first (Medical Malpractice)
was
committed, according to the Complaint, when A-Rod’s doctor did not tell him he
had a “superior labral tear at the left hip” and “knowingly” cleared A-Rod to
play during the 2012 playoffs, “allowing Plaintiff [A-Rod] to further injure
himself and the necessity for additional surgeries.”
The
second (Lack of Informed Consent) alleges that nobody told A-Rod about the
severity of his injuries and, had he been fully informed, he would have made a
different decision (presumably not to play in last year’s playoffs).
The
third (Vicarious Liability) is the doctrine that can hold the hospital liable
for the acts of its doctors, essentially accusing New York
Presbyterian/Columbia University Medical Center of dropping the ball and not
either reviewing this doctor’s credentials and/or his specific A-Rod diagnosis,
specifically saying that “Had the defendants made the above described inquiry
or, in the alternative, had the Defendants reviewed and analyzed the information
obtained in a proper manner, privileges and/or employment would not have been
granted and/or renewed.”
One
of the most interesting things about this lawsuit is that it was filed in the Bronx, not Manhattan. The venue tie is that Dr. Ahmad worked at
Yankee Stadium (obviously in the Bronx) while the hospital is across the river
in Manhattan.
The
reason for filing this case in the Bronx? Well, after talking to a few medical
malpractice lawyers, the reason seems clear:
apparently, if you practice medical malpractice law, your best chance
for a good plaintiff’s verdict is in the Bronx, not Manhattan. According to one lawyer, the Bronx is known as the
“Malpractice Capital of the World,” that is, if you represent a plaintiff in a
malpractice action, you want to file, if at all possible, in Bronx County.
At
a minimum, the defendants in this lawsuit (the doctor and the hospital), may
try and move the case over to New York County (in Manhattan, where the hospital is
located), where the perception, and quite possibly the reality, is that
defendants would get a fairer shake from a Manhattan jury.
CAN’T
100 GAMES MAKE VIRTUALLY ALL OF THIS GO AWAY?
If
it’s true (and that’s in dispute) that there was a chance, right before the
suspension came down, that this case could be settled before any suspension was
announced, is there a chance it could be settled now?
While
many point to the now incredible animosity among the parties, isn’t there a
number that could make this go away with both sides claiming victory?
It
says here that the number could be 100 games.
Why? Well, from Baseball’s
perspective, it would be more than the 50 that all the other Biogenesis players
got (and more than the 65 that Ryan Braun got).
It would stop the circus while letting Bud Selig talk about how he’s
saving the integrity of the game and how A-Rod was punished more than anybody
else.
On
the A-Rod side, it could be discussed as a win for A-Rod as he had the
suspension cut from 211 to 100 games (i.e., more than half). The arbitration and, at least, the lawsuit
against Baseball and the Commissioner (and maybe the malpractice suit) would
all go away. And A-Rod could play the
last 62 games of the 2013 season and get paid.
Whatever
A-Rod thinks, his legacy is not going to be saved, even if he somehow
miraculously got his suspension reduced to 50 games or even 0, something that
is probably virtually impossible in this arbitration. And, at some point, A-Rod, like Roger Clemens
before him, may wake up one day soon and think to himself when (how?) does he
stop paying the millions of dollars that he is paying now to litigate on not
one, not two, but three different legal fronts.
No
matter how much money he has, like Roger Clemens, it says here that, at some
point, he will get sick and tired of the cost and aggravation of the whole
thing.
Now,
many think that ship has sailed due to the incredible animosity between the two
sides. And they might be right. But, at 100 games, it says here that both
sides can claim victory and it can virtually all be over.
ONE FINAL THOUGHT ON FEDERAL COURT AND THE POSSIBILITY OF AN
INJUNCTION ALLOWING A-ROD TO PLAY NEXT YEAR.
This
notion has been bandied about a lot already.
That is, A-Rod, unhappy with the arbitrator’s ruling, (100 games, 162
games, 211 games, whatever) will simply march into federal court, appeal the
arbitration award to a federal judge, get an injunction and play on Opening Day
2014.
It
says here that that will be a virtually impossible thing for A-Rod to do for
two reasons.
To
get an injunction in federal court, A-Rod’s lawyers would have to show a
likelihood of success on the merits and the “irreparable harm” he will suffer
if an injunction is not granted.
Without
going into great detail now (as there is no decision in the arbitration on the horizon),
suffice it to say that this writer/attorney does not believe that A-Rod and his
legal team can overcome these two obstacles if (when?) the time comes for him
to decide whether to appeal the arbitrator’s ruling.
Much
more on that if (when?) it becomes necessary.
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