Saturday, October 5, 2013

Day 5 of ARod arbitration = start of 2 ARod lawsuits

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.


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.


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.


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.


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.


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.



No comments: