Page 1 Not Reported in N.E.2d, 1989 WL 111445 (Ohio Com.Pl.) (Cite as: 1989 WL 111445 (Ohio Com.Pl.

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Page 2 Not Reported in N.E.2d, 1989 WL 111445 (Ohio Com.Pl.) (Cite as: 1989 WL 111445 (Ohio Com.Pl.)) judgment substituting an arbitrator appointed by the court for the arbitrator specified in the bylaws of the Diamond Dealers Club, Inc. in which both plaintiff and defendants were members. In relevant part, the New York Court held that, The law is well settled that in an appropriate case, the courts have inherent power to disqualify an arbitrator before an award has been rendered. ... The proper standard of review for the disqualification of arbitrators is whether the arbitration of process is free of the appearance of bias.... In the present case, the appearance of bias, by virtue of the circulated letter, permeates the entire DDC including the Board of Arbitrators from which the arbitrators for this dispute were selected. As Trial Term noted, [t]he devastating impact of this letter to a predominantly Jewish organization cannot be overemphasized. Plaintiffs should not be required to arbitrate their claims in such a charged atmosphere. Trial Term, therefore, did not err by removing the arbitration from the DDC due to the appearance of impropriety and specter of bias among the DDC. We accordingly affirm. 473 N.Y.S.2d at 234 (emphasis added).

Only the Westlaw citation is currently available. CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY. Court of Common Pleas of Ohio, Hamilton County. Peter E. ROSE, Plaintiff, v. A. Bartlett GIAMATTI, et al., Defendants. No. A8905178. June 23, 1989. PLAINTIFF PETER E. ROSE'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION NADEL, Judge. I. PETE ROSE'S REQUEST FOR INJUNCTIVE RELIEF IS NOT PREMATURE. *1 It is hornbook law that,

The commissioners of professional sports leagues do Where a court's general equity jurisdiction has been not enjoy any particular immunity in this regard. In invoked, it may stay an arbitration proceeding on the Erving v. Virginia Squires Basketball Club, 349 F.Supp. ground that an arbitrator was not qualified because of bias 716, 719 (E.D.N.Y.), aff'd., 468 F.2d 1064 (2d Cir.1972), or prejudice; to permit the arbitration to proceed to a the Court ordered professional basketball player Julius conclusion under such circumstances would be futile, Erving to arbitrate his claims concerning the validity of since the award would certainly be vacated. his contract with an American Basketball Association franchise as required by the terms of Erving's contract. 5 American Jurisprudence 2d, Arbitration & Award However, Erving's contract called for arbitration before 100 at 596. the ABA Commissioner who was a partner in a law firm that represented Erving's employers. The Court ordered Defendants Giamatti and Major League Baseballarbitration but disqualified the Commissioner of the ABA make the statement that they are not aware of any case holding that [u]nder the circumstances, arbitration where a private association was required to disqualify its should proceed before a neutral arbitrator and the order decisionmaker before he had rendered a decision. Such so provides. 349 F.Supp. at 719 (emphasis added) See authority exists. In Rabinowitz v. Olewski, 100 A.D. 2dalso Corporate Printing Co. v. New York Typographical 539, 473 N.Y.S.2d 232 (1984), the Appellate Division ofUnion, 601 F.Supp. 323, 328 n. 8 (S.D.N.Y.1984) the New York Supreme Court affirmed a trial court

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Page 3 Not Reported in N.E.2d, 1989 WL 111445 (Ohio Com.Pl.) (Cite as: 1989 WL 111445 (Ohio Com.Pl.)) (Courts have displaced arbitrators for bias prior to the their own rules and have not accorded Pete Rose the due rendering of a decision by the arbitrator but these cases process and natural justice required by the law of Ohio.FN1 involved an arbitrator specifically named in the agreement.). Pete Rose is not required to exhaust his remedies within Major League Baseball. Defendants' own *2 Defendants erroneously state the law to be that authorities recognize that exhaustion is not required when courts will not intervene in the actions of privateinternal appeal is futile or illusory. See Viegel v. Fraternal associations. Defendants' own authority shows that this is Order of Eagles, No. 88AP070046, 1988 WL 142306, not the case. Lexis slip op. at 10 (Ohio App. Tuscarawas Cty. December 28, 1988) (The appellants failed to The decisions of any kind of voluntary society or demonstrate that they exhausted their remedies within the association in disciplining or suspending, or expelling organization and failed, alternatively, to demonstrate that members are of a quasi judicial character. In such cases, such an appeal would be futile or illusory.) Unlike Sims the courts never interfere except to ascertain whether or v. Ransom, 188 Misc. 1059, 67 N.Y.S.2d 416 not the proceeding was pursuant to the rules and laws of (Sup.Ct.1946), cited by Giamatti, there is no person or the society, whether or not the proceeding was in good entity within Major League Baseball that has the power to FN2 faith, and whether or not there was anything in the review or correct the actions of Giamatti. proceeding in violation of the laws of the land. Exhaustion is not required as a prerequisite to judicial relief when the person or body before whom such State ex rel. Ohio High School Athletic Ass'n. v. Judges, 173 Ohio St. 239, 247, 181 N.E.2d 261, 266 remedies lie is biased or has prejudged the issue. See (1962) (emphasis added). See also Louisiana State Board Gibson v. Berryhill, 411 U.S. 564, 576 n. 14 (1973) of Education v. NCAA, 273 So.2d 912, 915 (La.App.1973)(State administrative remedies have been deemed (Courts will not interfere with the internal affairs of ainadequate by federal courts and hence not subject to the private association except in cases when the affairs and exhaustion requirement ... [w]here the state administrative proceedings have not been conducted fairly and honestly, body was found to be biased or to have predetermined the or in cases of fraud, lack of jurisdiction, the invasion of issue before it.). The remedy which Defendants want property or pecuniary rights, or when the actionPete Rose to exhaust is submission to Giamatti's complained of is capricious, arbitrary or unjustlyhearing. Pete Rose is not required to exhaust that discriminatory.). The law of the land in Ohio includes the remedy because, as is shown by unequivocal evidence principle that a member who an association seeks tobefore the Court, Giamatti is biased and has prejudged expel is entitled to due process and natural justice ....Pete Rose's case. Bay v. Anderson Hills, Inc., 19 Ohio App.3d 136, 137, 483 N.E.2d 491, 493 (Hamilton Cty.1984) (emphasis added). *3 Basic justice requires that Pete Rose not be required to submit the issue of Giamatti's bias and lack of The present case falls clearly within the exceptionfairness for decision by Giamatti. As the Court stated in recognized by the cases which Defendants have cited to Matter of Cross & Brown Co., 4 A.D.2d 501, 167 this Court. This is not a case involving participation in N.Y.S.2d 573 (1957): extracurricular athletics. Instead, this case involves the right of Pete Rose to pursue his livelihood in the only A well-recognized principle of natural justice is profession which he has ever known. The evidence before that a man may not be a judge in his own cause. the Court shows that Defendants have not complied withIrrespective of any proof of actual bias or prejudice, the

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Page 4 Not Reported in N.E.2d, 1989 WL 111445 (Ohio Com.Pl.) (Cite as: 1989 WL 111445 (Ohio Com.Pl.)) law presumes that a party to a dispute cannot have that procedure must not be a sham designed merely to give disinterestedness and impartiality necessary to act in a colorable propriety to an inadequate process. judicial or quasi-judicial capacity regarding that controversy. This absolute disqualification rests on sound Id. at 544 n. 65 (quoting Van Daele v. Vinci, 51 public policy. Any other rule would be repugnant to aIll.2d 389, 282 N.E.2d 728, 732 (1972)).FN3 See also proper sense of justice. Atlanta National Baseball Club, Inc. v. Kuhn, 432 F.Supp. 1213, 1218 (N.D.Ga.1977) (The extent of defendant 167 N.Y.S.2d at 575. There is no remedy for Pete Kuhn's contractual power is a question for the court.). Rose to exhaust prior to a judicial decision in this case because Giamatti cannot judge his own conduct in this This case does not implicate the Commissioner of matter. Baseball's discretion to determine what is or is not in the best interests of baseball. This case presents the Court with a situation where Defendant Giamatti and his agents are actually biased and have actually prejudged Pete Rose's guilt, all contrary to Baseball's own Rules of Defendants Giamatti and Major LeagueProcedure. It is not Pete Rose who seeks to have Giamatti Baseball are, like other private organizations,disqualified in this case. Giamatti has disqualified himself entitled to some deference to exercise theirby his words and actions taken during his proceedings against Pete Rose. II. THE COMMISSIONER IS NOT BEYOND JUDICIAL SCRUTINY IN CARRYING OUT HIS RESPONSIBILITIES.

own discretion in governing their internal affairs. However, that deference is not III. PETE ROSE HAS ESTABLISHED HIS unlimited and a court will intervene where ENTITLEMENT TO THE REQUESTED RELIEF. such discretion is abused or the proceedings *4 Defendants are correct in stating that fairness includes notice of the charges and an opportunity to be do not comport with fundamental fairness.

Geraci v. St. Xavier High School, 13 Ohio Ops.3d. 146,heard. However, a hearing requires substance as well as 149-50 (Ohio App. Hamilton Cty.1978) (emphasis added).form. A hearing is the reception of fact and arguments The United States Seventh Circuit Court of Appeals in the thereon for the sake of deciding correctly ... and the case of Charles O. Finley & Co. v. Kuhn, 569 F. 2d 527opportunity to be heard must be granted at a meaningful time and in a meaningful manner. Professional Sports ( 7th Cir.), cert. denied, 439 U.S. 876 (1978), relied upon Ltd. v. Virginia Squires Basketball Club, 373 F.Supp. 946, heavily by Defendants, recognized that even the action of 951 (W.D.Tex.1974) (granting permanent injunction Major League Baseball is reviewable 1) where the rules, against the Commissioner of the American Basketball regulations or judgments of the Association are in Association). contravention to the laws of the land or in disregard of the Charter or Bylaws of the Association and 2) where There is more to fairness than simply a hearing and the association has failed to follow the basic rudiments Defendants ignored Pete Rose's significant Ohio, Sixth of due process of law. 569 F. 2d at 544. The Court Circuit and Supreme Court cases that prove the point. went on to state that, Fairness, of course, requires an absence of actual bias in the trial of cases. In re Murchison, 349 U.S. 133, 136 While [s]trict adherence to judicial standards of due(1955); Anderson v. Sheppard, 856 F.2d 741, 745 (6th process would be arduous and might seriously impair Cir.1988). Cf. Western Female Seminary v. Blair, 12 Ohio the ... proceedings of voluntary associations, ... theDec.Rep. 677, 682 (Cinti.Super 1857) (Whatever, then,

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Page 5 Not Reported in N.E.2d, 1989 WL 111445 (Ohio Com.Pl.) (Cite as: 1989 WL 111445 (Ohio Com.Pl.)) may be regarded as a good ground of objection against adoes not matter whether Giamatti formed this conclusion juror, ought to obtain when urged against anfrom first-hand observation or simply accepted Dowd's arbitrator....). Giamatti and Major League Baseball evaluation; Giamatti has still manifest prejudgment on an would have the Court believe that this aspect of fairness issue central to the accusations against Pete Rose and has does not apply to a private decisionmaker like Giamatti tied his own reputation to the veracity of Peters. This is who is not subject to any internal review procedure. not like an adverse preliminary ruling or an adverse ruling Defendants ignore the clear pronouncement of the United in a prior case. Giamatti's statements are manifestations of States Supreme Court that courts must be scrupulous toprejudgment on the merits of this case similar to that guard against partiality when decisionmakers have condemned in Anderson v. Sheppard, 856 F.2d 741 (6th completely free rein to decide the law as well as the factsCir.1988) and Nicodemus v. Chrysler Corp., 596 F.2d 152 and are not subject to appellate review. Commonwealth (6th Cir.1979), cases which Giamatti and Major League Coatings Corp. v. Continental Casualty Co., 393 U.S.Baseball refuse to address. 145, 149 (1968). While a private association is not subject to all of the requirements of Fourteenth Amendment due PETE ROSE IS ENTITLED TO A TEMPORARY process, Ohio law does require private entities to grant RESTRAINING ORDER due process and natural justice to their members and to *5 Plaintiff Peter E. Rose (Pete Rose) is entitled to comport with fundamental fairness. Bay v. Anderson a Temporary Restraining Order under the authority cited Hills, Inc., supra, 19 Ohio App.3d at 137, 483 N.E.2d atby Defendants A. Bartlett Giamatti and Major League 493; Geraci v. St. Xavier High School, 13 Ohio Ops.3d atBaseball. A temporary order may be granted restraining 149-50. FN4 an act when it appears by the petition that plaintiff is entitled to the relief demanded, and such relief, or any Giamatti argues that his conduct has not disqualifiedpart of it, consists in restraining the commission or him from deciding Pete Rose's professional fate. An continuance of such act, the commission or continuance investigative officer is not per se disqualified fromof which during the litigation, would produce great or conducting hearings, although a lack of impartiality inirreparable injury to the plaintiff.... Jenkins v. Porter, 22 fact would, of course, violate ... due process rights. Ohio Misc. 48, 52, 257 N.E.2d 914 (C.P. Cuyahoga Schank v. Hegele, supra, 36 Ohio Misc.2d at 8, 521Cty.1969) (quoting Ohio Rev.Code 2727.02). N.E.2d at 13 (issuing preliminary injunction). Defendants cite Schank v. Hegele, 36 Ohio Misc.2d 4, Bias is always difficult, and indeed often impossible 521 N.E.2d 9 (C.P. Morgan Cty.1987), which states that to prove. Unless an arbitrator publicly announces his the Court must balance the injury to Pete Rose if relief is partiality, or is overheard in a moment of privatedenied against any injury shown to Defendants if relief is admission, it is difficult to imagine how proof would be granted. In a case involving expulsion of students from obtained. school without due process, the Shank v. Hegele court held that, [d]amages would clearly be inadequate as a Morelite Construction Corp. v. New York City remedy herein, for what is at stake is the dislocation and District Council, 748 F.2d 79, 84 (2d Cir.1984). Pete Rosethe possible derailment of educational careers, with potential lifetime effects. 36 Ohio Misc.2d at 7-8, 521 has put exactly that kind of proof before the Court. N.E.2d at 13. The court also held that, the injury to defendants arising from the students remaining in school Giamatti has stated that Ron Peters was candid, for the present, even if it is ultimately determined that forthright and truthful in telling John Dowd that Pete they were afforded all procedural fairness is minimal. 36 Rose has bet on baseball and on The Cincinnati Reds. It Ohio Misc.2d at 8, 521 N.E.2d at 13.

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Page 6 Not Reported in N.E.2d, 1989 WL 111445 (Ohio Com.Pl.) (Cite as: 1989 WL 111445 (Ohio Com.Pl.)) and truthful is obvious. Here, too, Pete Rose's cases were The present case is similar. Pete Rose's Complaintignored by Defendants. See Fitzgerald v. Mountain Laurel and the evidence presented to the Court today show thatRacing, Inc., 607 F.2d 589, 601 (3d Cir.1979) , cert. Pete Rose is entitled to impartiality and fairness, both denied, 446 U.S. 956 (1980). Giamatti's decision, under the rules of Major League Baseball and the law ofconsistent with his prior statements in this matter, will Ohio. What is at stake in this case is the possible substantially destroy Pete Rose's livelihood and termination of Pete Rose's professional career in baseball reputation. No subsequent judicial remedy could undo in violation of those rights. Pete Rose's interest in his that damage. In contrast, Giamatti and Major League career and his reputation must be weighed against theBaseball have no evidence that there would be harm to very minimal harm, if any, to Defendants from permitting them from the issuance of a temporary restraining order, Pete Rose to continue performing as Field Manager ofapart from speculation about the damage that such an The Cincinnati Reds as he has done in prior years andorder could theoretically do to Giamatti's stature. since the Major League Baseball Season opened on April 3, 1989. The focus of this action is the bona fides of the Commissioner in conducting the investigation. Any erosion which such an inquiry will work on the integrity IV. DEFENDANTS HAVE NOT SHOWN THAT BASEBALL OR THE PUBLIC WILL SUFFER ANY of baseball has been brought about not by any actions of Pete Rose, but by the actions of Giamatti and his agents. HARM IF DEFENDANTS ARE TEMPORARILY Giamatti and Major League Baseball cannot argue that RESTRAINED. Defendants assert that it is vital that this Court allow baseball will suffer legally cognizable harm from the hearing to go forward so this matter can be finally dispassionate, unbiased judicial inquiry into their conduct. resolved in order to protect the image of baseball and the The integrity of Baseball will suffer more in the public image of Giamatti. There is no evidence that the gamblingeye if Giamatti and his agents can disregard their own allegations leveled against Pete Rose by convicted felons rules and basic concepts of American justice with have done any damage to baseball's reputation. Pete Rose impunity. has managed The Cincinnati Reds all season under the cloud of these allegations and baseball is, by all appearances, thriving. CONCLUSION For the reasons set forth above, those set forth in Plaintiff Pete Rose's June 19, 1989 Motion for Temporary Defendants are correct that intense scrutiny has been Restraining Order and Preliminary Injunction, and those focused on the Commissioner's handling of this matter.established by the evidence before the Court, Pete Rose This intense scrutiny is due to Giamatti's own actions, respectfully requests that the Court issue a Temporary particularly the act of stating in writing that he believes Restraining Order restraining all disciplinary proceedings Rose's accusers to be candid, forthright, and truthful. against him until the determination of this action, all as is Giamatti cannot argue that his own improprieties havemore particularly requested in the proposed Order attached to Pete Rose's Motion. shifted the balance of harms in his favor.FN5 *6 The irreparable injury to Pete Rose from being required to submit to a decision whether he should be suspended or banned from baseball by a man who has already determined that statements that Pete Rose engaged in forbidden conduct were candid, forthright Respectfully submitted, /s/ Robert G. Stachler Robert G. Stachler, S-172

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Page 7 Not Reported in N.E.2d, 1989 WL 111445 (Ohio Com.Pl.) (Cite as: 1989 WL 111445 (Ohio Com.Pl.)) was testimony that several years ago ... Commissioner Armstrong's friend and attorney, Mr. Heichel, [stated] that we're going to get you into court for legal recruiting. This statement was purportedly made at least five years ago, and Commissioner Armstrong was not the person who uttered it. In contrast, the statements that Pete Rose's principal accuser has been candid, forthright and truthful was made by Giamatti himself, in writing, to a United States District Judge, on April 18, 1989, slightly more than two months ago. FN2. The court in Sims v. Ransom, supra, held that the plaintiffs were not entitled to enjoin proceedings against them by an allegedly prejudiced Bishop of a church because they had failed to exhaust the church's internal remedies. However, the Sims v. Ransom court specifically found that the church had a General Conference and a Bishops' Council which both had authority over the particular Bishop who was acting against plaintiffs. Thus, there were internal remedies available within the church to plaintiffs to obtain review of the action of the biased Bishop. No similar internal remedies are available to Pete Rose within Major League Baseball. FN3. Defendants' reliance on Milwaukee American Ass'n. v. Landis, 49 F.2d 298 (N.D.Ill.1931) is inapposite to the present case. The Landis case considered the power of the Commissioner of Baseball to define what conduct is not in the best interests of baseball. Landis does not hold that the Commissioner of Baseball is free to act unfettered by his own rules and basic concepts of due process, fundamental fairness, and natural justice. Nor did that old case deal with Commissioner Ueberroth's Rules of Procedure. Finley v. Kuhn also did not involve a claim that Commissioner Kuhn's decision was

Trial Attorney for Plaintiff Peter Edward Pete Rose TAFT, STETTINIUS & HOLLISTER 1800 Star Bank Center Cincinnati, OH 45202 (513) 381-2838 OF COUNSEL: William J. Seitz III, Esq. (S-597) TAFT, STETTINIUS & HOLLISTER 1800 Star Bank Center Cincinnati, OH 45202 (513) 381-2838 Reuven J. Katz Robert A. Pitcairn, Jr. KATZ, TELLER, BRANT & HILD 1400 Tri State Building Cincinnati, OH 45202 (513) 721-4532 FN1. This case is not similar to Massillon City School District v. Ohio High School Athletic Ass'n., No. 7247 (Ohio App. Stark County, November 5, 1987). In Massillon City, the Court noted that the sole piece of evidence of bias

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Page 8 Not Reported in N.E.2d, 1989 WL 111445 (Ohio Com.Pl.) (Cite as: 1989 WL 111445 (Ohio Com.Pl.)) procedurally unfair or biased. See 569 F. 2d at 540 n. 45 & 546. FN4. The case of Viegel v. Fraternal Order of Eagles, No. 88AP070046 (Ohio App. Tuscarawas Cty., December 28, 1988), 1988 WL 142306 (cited by Defendants) also shows that private associations must accord due process. The Viegel Court began its discussion of that case by stating that, we find that appellants were granted substantial process due them as members and officers of this nonprofit corporation, consistent with its internal rules and regulations. 1988 WL 142306, Lexis pages 910. Nothing in Viegel even remotely suggests that Giamatti can dispense with fundamental fairness, including the impartiality of the decisionmaker, simply because he deems it expedient to do so. In Browing v. Fraternal Order of Eagles, No. 1769 (Ohio App. Lawrence Cty., August 22, 1986), 1986 WL 9644, the Court specifically recognized that the court may step in to protect the due process rights of members of a private association. 1986 WL 9644, Lexis p. 3. Both Browning and Viegel are attached to Defendants' Memorandum in Opposition. FN5. Giamatti argues that his letter to Judge Rubin stating that Ron Peters has been candid, forthright and truthful was a routine presentencing communication. Obviously, this view was not shared by the experienced Federal Judge to whom this letter was addressed. Ohio Com.Pl.,1989. Rose v. Giamatti Not Reported in N.E.2d, 1989 WL 111445 (Ohio Com.Pl.) END OF DOCUMENT

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