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.
