Arbitration a Hot Topic at Sports Law Conference

Oct 16, 2004

Dozens of sports lawyers convened late last week at the ABA’s annual Forum on the Entertainment and Sports Industries, addressing a range of relevant topics.
One of the more interesting topics was the arbitration process in Major League Baseball, which was addressed from management’s perspective on a couple different panels.
Los Angeles attorney Mark Rosenthal of Jeffer, Mangels, Butler and Marmaro briefed the audience in the overall process, before delving into specifics.
Rosenthal, who has been doing arbitrations for 15 years, explained in his talk that arbitrations are held every year between February 1 and February 21. Prior to the 1-day hearing, management and labor submit concrete compensation figures. With arbitration, “you either win completely, or lose completely.” That reality usually leads to a settlement, according to Rosenthal. In fact, out of the 150 cases that were submitted to arbitration last spring, all but seven of them settled.
Rosenthal represented management in three of those arbitration hearings.
“Since there is no discovery, these hearings really are litigation by ambush,” said Rosenthal. “You have one hour to present your case, primarily relying on statistics. And you have a half-hour rebuttal, which really requires you to anticipate the other side’s argument. The lawyer really is witness, attorney and expert.”
However, Rosenthal noted that the attorney can use this to his or her advantage. One of the tools he likes to use is placing statistical charts on an easel, for effect. “When you get up to walk to the easel, everyone in the room is suddenly paying attention,” he said.
Rosenthal highlighted two cases, which were especially interesting.
First, he represented former Atlanta Braves pitcher John Rocker, who created a stir a decade ago with racist comments he made to Sports Illustrated. Going into the hearing, Braves management was hesitant to bring up the off-the-field issues for fear of enraging Rocker and creating excessive ill-will. Rosenthal said he told management that there chances of winning, however, would drop to 25 percent if he were to ignore those issues, and 75 percent if he were aloud to bring them up. The issues were brought up, and Rosenthal’s client won.
Second, the attorney represented Dodgers reliever Greg Gagne, coming off a year in which he won the Cy Young award. “This case was a litigator’s dream because everyone expected us to lose,” he said. Gagne was represented by well-known agent Scott Boras. Rosenthal said Boras began by comparing Boras to Yankees reliever Mariano Rivera and describing the intense pressure on Gagne as a closer. Rosenthal viewed the comparison as an opening. He noted that Gagne was pitching for a team that was 15 games out of first, while Rivera had to endure “the gut-wrenching” pressure of pitching for the Yankeees.
Rosenthal offered a final tip for other attorneys, suggesting that precedents in arbitration hearings can be very useful, since most of arbitrators are professors.


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