Too many times, when lawyers see a similar kind of case or a certain set of facts, they tend to take the same legal approach to the problem over and over again. Yet, the beauty of good "lawyering" is the ability and courage to take a fresh and individualized look at each case or dilemma (even if you think you've seen it all). I know it's sappy but the law is supposed to be "alive" to meet the changing times we live in and different issues we may face. This means a lawyer, even in the most competitive sports law venues, must sense when its time to change his or her way of doing things.
It has been well documented that Francisco Rodriguez, the New York Mets star closer, is alleged to have punched his 53-year-old father-in-law in or around the player's "family waiting" area inside of Citi Field (the Mets' home). After the attack, K-Rod's father-in-law had a trip to the hospital for minor treatment for his injuries and K-Rod got a trip downtown to be arraigned on misdemeanor assault charges. After a two-game suspension, K-Rod pitched one inning before coming up with a season-ending thumb ligament injury. The Mets, in turn, placed K-Rod on the "disqualified list," which means the team can cut off his pay and consider the remainder of his 2011 salary (a whopping $11.5 million with a doubtful $17.5 million 2012 option) to be non-guaranteed if he gets cut by the team. As always, the MLB Players' Union filed a grievance concerning the Mets' decision and has demanded arbitration (which is how disputes are settled in the MLB) to challenge the Mets' punishment of K-Rod.
Now, we've all seen this show all too often in professional sports. A high-price player does something awful, the team tries to discipline the player and the union fights it. Truth be told, the players' unions have done fairly well in these types of labor disputes. I am reminded here of how the NFLPA won an appeal to reinstate a large portion of Michael Vick's roster bonus as he was heading to federal prison for financing a dog fighting ring. How often have we seen the MLBPA fight any steps in baseball to require testing for performance enhancing drugs? Recently, the union came out against blood testing for HGH because the testing was too unproven, even though the World Anti-Doping Agency is recommending and using such tests.
In labor law, it is the role of a union to obtain a favorable collective bargaining agreement for its members, and then, to enforce an employee's rights if the agreement is violated. I have no issue with this function of a labor union. In sports, unlike other types of vocations, the union's role has changed to an extent that is beginning to disturb common sense. The question is: When should a union decline to defend a player? A union does not have to defend a player every time the player violates the law or does something outrageously unfortunate.
We all know that MLB players (and all sports stars) live a pampered life and sometimes get away with bad behavior. The problem is this privilege has spun out-of-control. Whether it's Adam (don't call me Pacman) Jones, Ben Roethlisberger, Gilbert "Gunslinger" Arenas, Roger Clemens or K-Rod, the "Sport in the Courts" business has never been busier. The problem is, even though some of these players have received criminal punishment, the public is getting sick of the circus of privilege. After his alleged attack, when K-Rod came in to pitch his last inning at Citi Field, he was booed mightily by a fed-up fan base.
So is it too late to return some common sense to high stakes team/player disputes? Do we have to watch the teams and unions take the same positions over and over again when a player acts in a way that would get anyone else fired?
Maybe not, if K-Rod, the Union and the Mets are willing to use some elusive common sense in this troubling situation. In the K-Rod case the Union could take no further action with regard to his grievance until the player's criminal case was resolved and his anger management treatment was successfully completed. Given K-Rod' violent workplace actions, the Union could seek a resolution of the K-Rod mess where it does not challenge the Mets' decision with regard to the disqualified list for this season (meaning no more pay for 2010). In addition, the Union could withhold any challenge to the potential non-guaranteeing of K-Rod's 2011 contract unless, and until, the pitcher shows he can actually get back on the field and live up to the terms of his deal.
It may seem like I am giving the Mets a pass in the K-Rod situation; Not so fast. In this isolated and strange K-Rod incident the Mets have been somewhat victimized. Any Mets fan knows that, while K-Rod has been so-so as the Mets' closer, the team needed him on the field to have any faint chances of success this season.
What the Mets must do, for the good of the organization and their fans, is fight (legally, no more punches). The Mets must hold steadfastly to their decision to disqualify K-Rod for the 2010 season. The organization must stand up to the Union to show the public (and themselves) that when you wear the Mets uniform you are expected to act as a true professional, which means keeping the beatings on the field. The Mets have already seen the disaffection of their base by a rapid decline in attendance; they must stop this bleeding.
I believe that some teams in the past have gone too easy on players out of a fear of reprisals from powerful agents, who control valuable free agents (paging Scott Boras). Memo to the Mets: Take a stand here for the good of your team and the future of the organization, step up to the plate, do what is right and good things will happen.
Lastly, what about K-Rod himself? Although we have watched player after player hide behind the legal team of their capable union for bad behavior and steroid use, this doesn't mean K-Rod must act in kind. No matter what happens in his case, K-Rod is wealthy athlete. He's not going to starve if he doesn't get paid for the rest of the year. K-Rod also has the opportunity to change the broken labor dynamic in sports. Besides apologizing, K-Rod could actually accept the Mets penalty for 2010 and forego the rest of his salary. As for 2011, K-Rod should endeavor to redeem himself by getting healthy, cleaning up his legal situation (before the season starts), and actually making the Mets' fans proud by helping his team do something they haven't done since 1986 - win a championship.
New York Jets cornerback 
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With all the 
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The Mets star closer, 
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My name is Christopher Fusco. I am the managing partner of Callahan & Fusco, LLC with offices in New York, New Jersey, and Pennsylvania.