With Major League Baseball beginning this week the important appeal of the 211 game suspension given to Yankee third baseman Alex Rodriguez by Commissioner Bud Selig, the old example of the Steve Howe arbitration appeal may shed some light on the current situation.
In that case, the arbitrator reversed my decision banning Howe from baseball for life. Howe was an eight time violator of the baseball drug policy. Absurdly, the arbitrator decided Howe deserved one more chance.
The Howe case surfaced in 1992 and much has changed in baseball and in the drug situation within baseball since then. In those days, there was no written drug policy in baseball.
The powerful players union had successfully resisted all efforts to implement a testing program by contending that any testing effort was a violation of the civil liberties of the players.
Their position was that baseball authorities could discipline a player only with evidence of a drug violation. Any player who was found to have used illegal drugs -- in my time the drug of choice was cocaine -- had his first violation viewed as a medical case.
The second violation was the basis for a short suspension and there was no agreement with the union on what the penalty should be for the third violation.
The Howe case was thus one of first impression, as they say in legal circles.
Howe was a sad figure. Once a superb pitcher for the Dodgers, he had a severe drug problem and his addiction eventually resulted in his being shunned by every big league team.
He and his wife came to me to beg for another chance, and assured me his drug problems were behind him.
After he spent a year in the minors where he was tested frequently, he was signed by the Yankees and pitched well in relief. But one winter, he made the mistake of buying a small amount of cocaine from an undercover Federal agent.
The hearing before me was straightforward. There were no factual disputes about the purchase.
Howe based his defense on the claim he had dropped the glassine container holding the coke in the mud and did not use it.
The rebuttal evidence was testimony by the Federal agent who sardonically explained that any serious cocaine addict who dropped the drug in the mud would immediately take it to a microwave, dry it, and then put it up his nose.
Even Howe grinned at that pithy testimony and my decision was clear.
I threw Howe out of the game for life. I was convinced he could not be rehabilitated while pitching in the majors under intense pressure.
But the union lawyers were clever. In the appeal, they claimed Howe had been a victim of ADD as a child and that new studies had showed the attention deficit child has a stronger inclination to drug addiction.
To punish Howe for his drug problem would be, they argued, to hold him responsible for medical errors in his childhood.
The arbitrator agreed and Howe was given the proverbial “one more chance.”
But his baseball career ended soon thereafter. Several years later, Howe died when his pickup truck rolled over and the autopsy showed he had been using drugs. He was 48.
The Howe case demonstrates the way the arbitrator sees his role is crucial.
In the current union agreement with MLB, how is the duty of the arbitrator spelled out? I have not seen the agreement and have no idea how the duties are defined.
There are two possible choices. The agreement might instruct the arbitrator to sit as if he were the Commissioner and to review the case de novo.
In that situation the decision of the Commissioner is given little weight. That is the way the Howe arbitrator behaved.
The alternative is for the arbitrator to be directed only to determine whether the Commissioner had a reasonable basis in fact and law for his decision.
In that instance, the decision of the Commissioner is given great weight and will be overturned only if his factual and legal basis is found wanting.
The arbitrator sits not as the substitute for the Commissioner but solely to evaluate the basis for what the Commissioner did.
I suspect the arbitrator in the Rodriguez case will -- if he has some flexibility-- view his assignment as giving him the widest latitude to decide the appeal as did the Howe arbitrator.
The result will be the diminution of the effects of the Commissioner’s decision to discipline Rodriguez with a hefty suspension.
The appeal should be an appeal and not the rehearing of the case. Did Steve Howe really win his appeal?