Tuesday, August 13, 2013

Interview conducted by David Saltzer, AngelsWin.com Senior Writer

With ARod back in the lineup while he appeals his 211 game suspension by MLB, and the Angels in New York playing the Yankees, fans across baseball are focused on the ongoing saga that is happening in the game. At AngelsWin.com, the thoughts and opinions about what to do with ARod, whether the punishment was too light or too severe, has been and continues to be thoroughly debated.

With that in mind, AngelsWin.com recently sat down with Kent Zimmerman, a legal expert to discuss the whole appeals process and the legal thought process driving both sides of this issue. Kent is a contributor to lawyers.com and martindale.com and regularly appears on TV and radio to discuss high profile cases. For a full bio for Kent Zimmerman, please see below.

Whether you agree with the 211 game suspension or disagree with it (either for being too harsh or too lenient), this is an interview that you will want to read. There are many issues and concerns for the game, and the outcome of this case will affect the game we love for many years.

AngelsWin.com: Kent, how are you doing today?

Kent Zimmerman: Doing well, thanks for having me Dave.

AngelsWin.com: What’s the latest with ARod, and what’s going on with his appeal?

Kent Zimmerman: We are in a little bit of a holding pattern as you know because ARod is allowed to play as he appealed the suspension. People who are looking at this saying that it could be towards the end of the year before there is any progress on the appeal and that’s because there are some exceptions. There will be requests likely for documents, likely interviews will take place and fact finding that will happen. What’s interesting about that long timeline is that time is really on ARod’s side because the longer it take, the more money on his contract he will be paid.
So from ARod’s perspective, take all the time you need with him getting paid during this fact finding portion of the investigation and while the appeal is pending. So we will not know a whole lot more officially for some time, possibly until the end of the year. You’ve got ARod obviously very well pocketed that he’s going to fight hard because if he doesn’t fight, nobody else will fight for him. On the other side of the table you got MLB that is very well financed. This is a battle royal that’s just getting started essentially. It’s hard to say where it’s going to go next, but that is where we are right now. We’re in a holding pattern.

AngelsWin.com: What is there exactly for ARod to fight? It’s pretty clear that they got him nailed with his name on documents, all sorts of stuff, failed tests in the past. He even admitted to using it in the past. What is there left for him to fight?

Kent Zimmerman: First of all the court of public opinion has convicted the guy already. It’s pretty clear when he took to the field in Chicago, my hometown, earlier this week there was a chorus of boos. There were chants of “PEDs”.

AngelsWin.com: Fans were cheering when he got beaned. What’s left for him here to fight?

Kent Zimmerman: Well, a couple things. One is the negotiated agreement put in place—and in ARod’s guidelines—for how long a suspension should be. The guidelines call that a first offense is a 50 game suspension and a second offense for a 100 game suspension. What ARod got is 211 games, by the way is the longest non-lifetime suspension that MLB has ever handed down. So he is facing a suspension that is far longer than the guidelines suggest and it’s the longest ever suspension MLB has ever offered for a non-lifetime ban situation.

I would also say that MLB claims that they have great evidence, and it’s quite likely that they do. When he was asked directly at the press conference in Chicago if he has ever used PEDs, he wouldn’t answer the question. He said there will be time for that to come out. So he says he’s going to fight hard, but won’t deny using them. So I hear you, that on one hand it seems there isn’t a whole lot to fight. But on the other hand he faces and extremely long suspension—far larger than the guidelines suggest—and he (ARod) will tell you it’s not a “open and shut” case and he will try to fight that. It’s entirely possible that his appeal will cause that suspension to get decreased from 211 games to something closer to the guidelines. It’s too early to tell, but partly that’s what he’s shooting for. On the one hand it looks like he doesn’t have much to fight but he doesn’t have much to lose with a lot of money on the line.

AngelsWin.com: Put yourself in the mind of Bud Selig: Why not do what I wrote about which is to ban the guy for life and just deal with it. It’s in the best interest of baseball to have this scandal go away and have someone like ARod go away. Why didn’t they just do the right thing and go with a lifetime ban?

Kent Zimmerman: I think Bud Selig wanted to do that for a number of reasons to send a message to other future players. But the reality is Selig could have done just that under the CBA that invokes the “Integrity of the Game” clause and levied a much harsher penalty, including the lifetime ban that you suggest. He conceded to do that because in my mind as lawyer, he would have very quickly faced a very well financed fight and the Players Union would have taken ARod’s side. Well, they have already taken ARod’s side in backing his appeal. I think when you’re Selig you realize most of your tenure has occurred without a brawl with the union. Selig likely doesn’t want to be caught up in that street brawl if he went with the lifetime ban. In my mind he took a path that would be less likely cause that kind of brawl. I think if Selig wanted to send that kind of message, but just didn’t want to brawl which would have got very ugly very quickly if he went with the lifetime ban.

AngelsWin.com: Explain it to a typical fan. There are many people who work in professions where having a clean record is required. If you’re a teacher or a banker with certain criminal things in your background, you’re never going to get a job. Why shouldn’t it be like that for a baseball player?

Kent Zimmerman: Morally, I’m with you all the way. I think it makes a lot of sense that ARod shouldn’t get special treatment when you look at it through a moral lense or the lense of the fans. However, the difference here is that the players have banded together and have used their leverage as a group of very highly paid performers to negotiate what is the drug agreement. That agreement has a guideline for how long the punishment should be. Those guidelines were negotiated by the Players Union and backed by the very wealthy players who support the union. The reason why this is different than a fan’s workplace in that these are wealthy, well financed players that banded together and set the rules in a case like this.

AngelsWin.com: So is this just another case like the banks where they are too big to fail or too big to jail?

Kent Zimmerman: There are some parallels David. The question is why the players and union have the power and should they have that kind of power to set the rules of the game in a case like this? But maybe we as fans don’t want them to have that kind of power and to set the rules ahead of time and want harsher penalties and that could be a result as this plays out.

AngelsWin.com: What role do federal or state prosecutors have in this? If a person wanted to get their hands on these drugs, it’s illegal. Why have the states and feds stayed off of the criminal aspect?

Kent Zimmerman: I don’t think we know if there will be a federal prosecution. It’s too early to tell. It’s possible that there could be but I wouldn’t bet on that. But I wouldn’t rule that out as well.

AngelsWin.com: In the past we’ve heard grumblings in Congress that if baseball will not clean up its act, they will do it for them. Do you still see that as a possibility?

Kent Zimmerman: I do, although history would suggest that is unlikely to happen anytime soon. It could always happen but history would suggest that Congress will let baseball work its problems out. When Selig imposed this 211 game suspension he wanted to send a message that baseball can clean up its own act and wouldn’t need anyone else to get involved.

AngelsWin.com: What’s likely to happen on appeal? What are the options in front of the decision maker?

Kent Zimmerman: There is a number of options. One is the suspension is upheld and ARod stops playing immediately and start serving that 211 game suspension. Another option is that the suspension can be modified so that it can be either more or less than the 211 games. It’s highly unlikely it will be more and possibly be less. The possibility is there that the suspension can be curtailed to perhaps something in the line with what the guidelines that the agreements would suggest and that is what I have my eye on. Also the suspension can be thrown out and I think that’s less likely to happen though.

AngelsWin.com: What do you put the odds at for the suspension being upheld as is, knocked down to 50-100 games, or entirely overturned?

Kent Zimmerman: I put my money on the suspension being knocked down between somewhere where it is now and 100 games.

AngelsWin.com: With the court of public opinion against PEDs and players coming out against him (ARod), even if the players union may be supporting him, how much does that play into the decision maker’s process?

Kent Zimmerman: I think that they would tell you it doesn’t play into it at all. I think it’s likely to play in and it’s hard not to take in consideration where the Players Union is on this, where the fans are on it and the best interest of the game. I’d be surprised if none of these outside influences have an effect. I think baseball would want to set precedence here. They are dealing with a big fish and a lot of eyes are on them. Fans are paying attention to this and want to see justice done. There is going to be an attempt to enforce the rules and that suggests the fact finders are largely going to take a look at the drug agreement under which the suspension was brought. That is what I expect and hope to happen, but to answer your question I believe some outside influences will play some role.

AngelsWin.com: One of the things that concerned me was the precedent of negotiating punishment with players. I don’t go negotiating punishment with my children; I don’t think most bosses want to negotiate a punishment with their employees. What kind of precedent was established because baseball went through a negotiating process with these players?

Kent Zimmerman: It’s a fair question. I would say that players are different than your children and different from regular employees and for better or worse are highly compensated individuals who have talents that a lot of people don’t have to get into the big leagues. For better or worse they have some leverage of what happens in a case like this because they have banded together and created a union which negotiates on their behalf. Is that right? I think that is debatable. Reasonable minds are going to differ on that just like reasonable minds differ on whether unions make sense outside the context of professional sports or other industries. But the reality is that the system we have to work with in that system is quite common to negotiate what happens when things go wrong like this and the punishment is administered in advance. The Players Union has leverage in this situation and is exerting it right now.

AngelsWin.com: Projecting forward how does this play out in the next CBA? Let’s say ARod wins the appeal on a technical ground, does that become a rallying cry from the owners for a more stringent thing like moral clause? What happens going forward?

Kent Zimmerman: First of all, the commissioner hasn’t followed the CBA in this situation. The reason why I believe he hasn’t invoked the CBA is because he would have a huge fight on his hands since the Players Union would vigorously oppose him if he particularly went for a lifetime ban under the CBA. I think it’s possible that players in the future are going to not want to be in a position for getting a suspension levied like this one that’s fallen outside the guidelines that has been set up (CBA). If particularly the 211 games is upheld, it’s going pull the players to negotiate harder next time not allow that sort of thing to happen and for the guidelines to be used. Owners will also negotiate harder next time as well. There is a lot riding on this, a lot of people watching are it and certainly it will set precedent.

AngelsWin.com: What kind of responsibility should teams have? I wrote an article in which I said teams benefit from all these players with steroids; sold seats, fans saw victories, playoff appearance, WS appearances, wins. Should there some kind of punishment for teams?

Kent Zimmerman: That is a really good point and there is an argument to be made. That teams particularly have knowledge of violations have a duty to report them or try to prevent them. The reality is that MLB is in control of the wealthy owners of the team and will not want to take on that responsibility. The way it is set up is that MLB is controlled by the owners and they have arranged that just MLB, not any individual team, is responsible for disciplining its players for violations. That’s exactly the way the owners want it. They don’t want to be on them. For better or worse, that is how they set it up. But I’m with you, if there is a way to set it up and the players didn’t put a roadblock and have teams take up some responsibility, I’m all for that.

AngelsWin.com: I wrote that teams should lose their first 3 rounds of draft picks and be forced to draft with the bare minimum signing bonuses so there some culpability. As an Angels fan, I don’t like that Texas got a bunch of wins on HRs from Nelson Cruz or the Yankees got wins from ARod hitting HRs that they wouldn’t have got. I think there should be some sort of punishment and the best way to do that is taken from their draft picks. This puts a real incentive for teams to know what’s going on in their clubhouse and what’s going on with their players.

Kent Zimmerman: I think you’re right that the situation is not fair for the Angels and Angels fans. The problem is that you got the ML owners making the rules on whether ML teams should take a punishment under their watch. So when the foxes are in charge of the hen house, the rules are not necessarily as they should be. Now if a higher authority stepped in, Congress or another authority, then I could see them taking a serious look into putting some stock in what you and I are talking about. But as long as owners are setting the rules, I don’t see that happening anytime soon.

AngelsWin.com: Mark Cuban recently weighed in on this and thinks it’s rather personal. He said on Leno, the way baseball is going after ARod is “personal”. Any thoughts on what Mark Cuban is doing and if that will affect him on ever getting a ML baseball franchise?

Kent Zimmerman: I’m a big fan of Mark Cuban. I don’t think he’s doing himself any favors if he wants a ML team. I am also not so sure that what he says that ML owners are going to take seriously. That said, I agree with a lot of his points. I think that giving a 211 game suspension—which is far outside the guidelines that have been set—is something that raised my eyebrows. Is it personal? I don’t know if it’s personal. But I do think that the Commissioner wanted to send a very strong message and wants severe punishment for what he sees as egregious transgressions. Is it personal? Maybe. But iit is far outside the guidelines and that raised my eyebrows and its possible the suspension will get knocked down before all is said and done. I agree with his position, although he didn’t do himself any favors, for getting a ML team.

AngelsWin.com: What would you say to the fans of other franchises that feel MLB is trying to specifically help the Yankees out of bad contract?

Kent Zimmerman: If you look at this from an economic perspective, no question that the Yankees could save money by getting ARod out of the organization. But do I think the Yankees colluded with MLB to exact the suspension that came out of the Commissioner’s office to save the Yankees money? No. I laugh when I hear that.

AngelsWin.com: You have Buck Showalter coming out saying that anything that happens to ARod is a gift to them (Yankees) since it would get them under the luxury tax threshold. It would free up money for them to dive right back in the free agent market. What do you say to those comments?

Kent Zimmerman: No question that this would get them under the cap they set for next year and save them a lot of money. But do I think that’s why MLB set the suspension? No. That would be like saying the IRS went after the tax cheat with millions of dollars because the government would benefit from getting that tax money. Yes the government would benefit from getting the money, but is that why the government went after the tax cheat? No. They went after him because the guy cheated on his taxes. Just because MLB issued the suspension and the Yankees could end up saving some money, doesn’t mean that’s why they did it. I would be surprised if they did this for any other reason than because they believe ARod violated the trust agreement.

AngelsWin.com: If you were advising the Yankees, would you suggest it’s best to lay low for a winter to remove any question about that?

Kent Zimmerman: Personally I think the Yankees have conducted themselves responsibly from everything I’ve seen on the outside. I don’t know Brian Cashman. He talked with ARod when he came back about the playing time that was scheduled. From what I can tell the team has treated him fairly as a team. Obviously there is a lot of animosity on both sides. It’s hard to know from the outside, but I would encourage the Yankees to be fair and keep your eye on the ball—meaning keep your eye on what contributes to the team and there’s a lot to play. From what I can see from the outside, that is what they are doing.

AngelsWin.com: Are we going to see some litigation against these guys from other players? If I were coming up through the minor leagues and another player took steroids and took my spot or if I got tagged by ARod that shortened my career, shouldn’t there be some potential liability? Is there potential for outside litigation?

Kent Zimmerman: Sure, there is a potential threat of outside litigation. But here is a data point that I think is telling. There was a long list of players when ARod’s suspension was announced. ARod is the only one that fought against the suspension and I understand why as we discussed. But the reality is that all the other players took their suspension, some apologized, some were contrite, very different reactions from ARod. I think it’s telling that other players took the punishment and apologized. Could there be litigation in the future by people who believe they were wronged by MLB or influenced by ARod (the allegations that ARod made it easier for other players to take the path that he did). Could there be litigation in the future? Yeah, I suppose so. But I think it speaks loudly and very telling that everybody else took the punishment and many apologize and many were contrite.

AngelsWin.com: When will this all be done and what’s the outcome?

Kent Zimmerman: I think we will likely have some signal, if not the full outcome, by the end of the year. If I had to say a suspension for ARod, somewhere between 211 games and 100 games. I say that based on the guidelines of the drug agreement. We will have to wait and see but that’s where I would bet my money. I know along with the 2 of us, there are a lot of people watching that will set a precedent for the future. The last thing I would say is I’m very happy there is a level of due process here. Think whatever you want about ARod or what he may or may not have done, he has a chance to appeal the suspension. There is going to be a fair hearing with very competent people. I personally, as a lawyer, like to see a process that is very deliberate, that is not rushed, there is a lot of people’s interest on the line. I would rather have this than one person that hands down the position on what the guy’s fate should be at. Personally I feel this is being handled in a very thoughtful way.

AngelsWin.com: Well thank you very much. I’m sure we all will be following this and probably see some resolution in the offseason and hopefully won’t carry over into next year.

Kent Zimmerman: Agree and thanks for having me Dave.

Kent M. Zimmermann
Lawyers.com and Martindale.com Contributor
Principal & advisor to law firm management, Zeughauser Group
Lawyers.com and martindale.com contributor Kent Zimmermann appears often on television and radio as a legal analyst to discuss headline-grabbing legal cases and high profile trials.  He is also an authority on the business of law, including law firm mergers, financial performance and failures, as well as trends driving change in the legal industry.

Kent is a former litigator, general counsel, and CEO. A frequent resource to journalists who cover high profile trials and law firms, he also counsels top-ranked global, national, regional and specialty law firm leaders, and on their behalf, interviews chief legal officers, managing directors and business unit heads of Fortune 500 and global companies.

A former TV news producer, Kent is regularly featured in mainstream and legal media including The Wall Street Journal, BusinessWeek, The American Lawyer Magazine, Reuters, CNBC and MSNBC. Kent is also a contributor to The National Law Journal, a repeat guest on National Public Radio, Bloomberg, NBC Chicago, and ABC radio in Chicago, as well as a frequent speaker at law firm retreats and management committee meetings.  

Kent is a graduate of Chicago-Kent College of Law and is based in Chicago.
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