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Did embattled Yankee third baseman Alex Rodriguez make a sound strategic judgment in walking out of his grievance arbitration hearing yesterday concerning his 211-game, PED-related suspension after the arbitrator denied his request to have MLB Commissioner Bud Selig, the person who made the suspension decision, testify? Should you do the same thing when an arbitrator treats you the same way? The answer in both instances is no.
Here is why. Walking out on his arbitration (and throwing a tantrum) will only hurt A-Rod – and such conduct would only hurt you. There is no countervailing benefit. Under Connecticut’s and most other state’s arbitration statutes, as is the case under the Federal Arbitration Act, the hearing will continue without the protesting party’s presence. The walkout won’t impair the arbitrator’s ability to issue a valid award. The protesting party is simply relinquishing his or her right to be present. This could mean converting a likely arbitration loss into a certain loss.
Well, you say, “What if I know I can’t win without this witnesses’ testimony (assuming I can elicit from him what I hope to elicit)?” The answer is you don’t lose anything by staying. After an adverse arbitration award, you can always move the court to vacate it on the statutory ground that the arbitrator was guilty of misconduct “in refusing to hear evidence pertinent and material to the controversy.” Conn. Gen. Stat. §52-418. If you’re successful and there is a new arbitration hearing, you can be sure the new arbitrator will allow you to present the witness.
Maybe the more interesting question in the A-Rod case is why would the arbitrator render his award vulnerable to being overturned by a court for refusing A-Rod’s request to have Selig appear and be questioned on how he arrived at his decision? We can only guess at the reason, but the MLB may have made a mistake in fighting Selig’s appearance.
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Alerts, commentary, and insights from the attorneys of Pullman & Comley’s Labor, Employment Law and Employee Benefits practice on such workplace topics as labor and employment law, counseling and training, litigation, union issues, as well as employee benefits and ERISA matters.