~ A Mediator's Musings ~

May 21, 2012 ~ Ryan Braun, MLB and Drugs: The Aftermath

We interrupt our program on the NFL concussions and bounties to bring you this “breaking news.”

The Ryan Braun case that we wrote about on March 6 may have had at least one somewhat surprising result. MLB has now terminated the services of the arbitrator, Shyam Das, who vacated Braun’s suspension for failing a drug test. Since the MLB collective bargaining agreement allows MLB or the players’ union to terminate the services of the arbitrator, MLB did exactly what it was entitled to do. Mr. Das had served as an MLB arbitrator for some 13 years and still acts as an NFL arbitrator.   Another player who failed a drug test, Eliezer Alfonzo, apparently used the same arguments in arbitration that Braun did and achieved the same result a few days ago. MLB won’t say why it elected to terminated Mr. Das’s services, but its public expressions of outrage at his decision in the Braun case and presumably a less public outrage about the decision in the Alfonzo case certainly suggest that the termination at this time is hardly coincidental

It’s kind of ironic that at least one speculation was that Mr. Das decided the Braun case as he did in order to avoid being fired by the players’ union—although in fairness, that writer also speculated that the Braun case might result in Mr. Das’s being fired by MLB. We pointed out in our discussion of the Braun case some of the advantages and disadvantages of arbitration as compared to other forms of dispute resolution, particularly litigating in court. And now we can point to one other difference—the parties in arbitration get to pick the arbitrator, their judge, either by agreement or through a selection process prescribed by their agreement. And if they decide they don’t like the way the arbitrator/judge has done his job, they can fire him if their agreement so provides—and the MLB collective bargaining agreement in fact does so provide. If they go to a public courtroom, their case gets assigned, usually at random, to one of the sitting judges, and they normally have no control over who that is. Most parties would think that they are better off having some control over the choice of who makes a decision in their case, even though at least one party will disagree with the outcome; after all, someone will inevitably lose in a courtroom case, too. But at least they can decide whether the person who hears their case is likely to have the background and knowledge to understand the issues it presents.   Of course, they have to pay the arbitrator, while the courtroom judge is paid with tax dollars, but here the parties no doubt think it’s worth it. And surely Mr. Das realized from the beginning that he served at the pleasure of MLB and the players’ union and that either could fire him at any time for any reason or for no reason. That came with the territory; he may be lucky he was able to keep the job as long as he did.

–Your “you can’t fire me from this job” mediator