HE EMBARRASSES SELIG SO HE’S GONE

By Murray Chass

May 17, 2012

Like baseball managers, baseball arbitrators are hired to be fired. Shyam Das, whom the owners fired recently, is the Walter Alston of arbitrators. He held the position of baseball’s impartial arbitrator for 13 years, much longer than any of his predecessors.

Das’s dismissal, following his decision that had a significant impact on baseball’s testing program for performance-enhancing substances, was similar to the owners’ dismissals of previous arbitrators. They followed decisions that the owners didn’t like. Does that make the owners sore losers? Absolutely. Poor sports? For sure.Shyam Das 225

Das is a highly acclaimed arbitrator, well regarded among other arbitrators and even by people on baseball’s management side. But he committed the deadly sin of ruling against Major League Baseball in a major grievance, Ryan Braun’s appeal of his 50-game suspension for a positive P.E.D. test.

Neither Michael Weiner, the head of the union, nor Rob Manfred, the clubs’ chief labor executive, would comment on the Das dismissal. But a baseball official said Das was fired because Commissioner Bud Selig felt the Braun decision publicly embarrassed him. Selig did not return a call Wednesday seeking comment.

Das also did not return a call. His secretary said he doesn’t speak to reporters, not an unusual policy for arbitrators.

A union official expressed concern that the Das dismissal would send a message to Das’s potential successors that if they were considering overturning a drug suspension they would be fired.

Were Peter Seitz and Tom Roberts alive, they could have told Das what to expect. Both were fired as the impartial arbitrator after ruling against the owners in major cases. Roberts, in fact, was fired twice.

The first time the clubs dismissed Roberts was after he ruled that clubs could not negotiate drug-testing clauses with players individually. But they acted while Roberts was hearing what would turn out to be the first of three collusion cases, and another arbitrator upheld the union’s claim that Roberts could not be dismissed while hearing a grievance.

So the clubs waited until he found that the owners had violate the collective bargaining agreement by conspiring against free agents and then they fired him the second time.

Seitz was fired in 1975 as soon as he ruled for the players in the Messersmith-McNally grievance. It was a ruling Seitz didn’t want to make and not because he knew he would be fired.

“If there was any arbitrator who tried not to rule it was Seitz in the Messersmith case,” recalled Marvin Miller, who was head of the union. “He recognized the importance of it. He felt if the parties could take it out of his hands it would be the greatest thing in the world. He tried very hard, begging us to negotiate it. But they had too many hot heads and they just couldn’t let it go.”

Owners also got disastrous advice from their lawyers. With foolish confidence, the lawyers told the owners they should let Seitz rule and if he ruled against them, the lawyers assured them, they could take the case to court and win there.

There was one problem. Lou Hoynes, the owners’ chief lawyer, who succeeded Bowie Kuhn in that role when Kuhn became commissioner, was an excellent courtroom lawyer, but he was short in his knowledge of and experience in labor law. Kuhn lacked a legal labor background as well.

“How could they ignore the key decision,” Miller said, “where the Supreme Court emphatically agreed that when the parties agreed on binding arbitration the arbitrator’s decision prevailed unless it was out of bounds and the arbitrator overstepped his authority or had a relationship that created an undue influence.”

Miller referred to the Steelworkers Trilogy, a trio of cases the Supreme Court decided in 1960.

Marvin Miller2 225“You had to have someone like Hoynes who had a big head but was abysmally weak in his knowledge of labor law,” Miller said by telephone the other day. “He went out of his way to say arbitration wasn’t the rule. I was astounded that Hoynes never looked at that decision. The Steelworkers Trilogy was a famous case. It was a very important decision. I never talked to him about it.”

The decision not to negotiate, then challenge the Seitz ruling in court cost the jobs of Seitz and John Gaherin, the clubs’ capable chief negotiator, who had strongly urged the owners to heed Seitz’s cautionary message.

The two sides of the labor wars had agreed that either could dismiss the arbitrator at any time with no reason needed. Seitz was the first arbitrator to lose his job since Miller fired Lewis Gill, the first impartial arbitrator, in 1972.

“It came out of the Alex Johnson case,” Miller related, referring to the 1970 American League batting champion. “Johnson was a problem for the Angels. He felt he was being discriminated against, and he probably was right. He got fined a record of number of times in spring training, something like 63 times (contemporary reports put the number at 29).

“The season started and things went from bad to worse. He got into a squabble with a reporter from California, who had been on his case. One day he took Johnson’s bat and hid it. Johnson was furious so he took some coffee grounds and put them in the writer’s typewriter. He said ‘You mess with my tools, I’ll mess with yours.’

“One day he came to my office. I spoke with him about 10 hours. We had lunch and dinner and he was still talking. I’m not a psychiatrist but I was married to a very good clinical psychologist and had learned some things. I knew I was speaking to a disturbed man.”

Miller then told of encountering Joe Cronin, the American League president, and “he gave me a diatribe that was as racial as any I had ever heard. I said we’re dealing with a problem and you don’t recognize it.I told him you had a player who did all sorts of things, including running the bases backward” he referred to Jim Piersall – “and you got him all sorts of help. Cronin walked away from me.”

Johnson was suspended and put on the restricted list so the Angels didn’t have to pay him. Miller filed a grievance.

“We got a report from a psychiatrist who said he was disturbed,” Miller related. “Management hired a psychiatrist, too. They agreed on his condition.”

“The arbitration hearing was a tragic thing,” he added. “Johnson broke down in the middle of it and cried.”

The arbitrator ruled that placing Johnson on the restricted list was improper, reversed the decision and reinstated Johnson with $29,000 in back pay.

“But he didn’t do anything about the record number of fines in spring training,” Miller said. The Angels had fined the outfielder a total of $3,750.

Miller said he discussed the fines with Gill, telling him he appeared to be “splitting the decision.”

Gill denied it, but Miller fired him anyway.

The clubs have executed more significant dismissals than the union. In firing Seitz, Roberts and George Nicolau, the clubs ousted the arbitrators who created free agency and found them guilty of colluding against free agents.

“Management is within their rights to terminate an arbitrator if they’re dissatisfied with his decisions,” Weiner, the union’s executive director, said.

“There’s a reason why Das was the longest serving arbitrator. He was an exceptional arbitrator with intelligence and integrity. You can’t survive that long unless you’re a good arbitrator.”

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