Domingo Germán Won’t Pitch in the Postseason, but Baseball’s DV Loophole Needs to Be Closed by Jay Jaffe September 23, 2019 When ESPN’s Buster Olney reported on Friday that Yankees right-hander Domingo Germán will not pitch again this year, either in the regular season or the postseason, in the wake of a reported violation of the Joint MLB-MLBPA Domestic Violence Policy and a likely suspension, it was a instance of the league and the players’ union lucking into the right outcome. While players suspended for violating the Joint Drug Agreement by taking performance-enhancing drugs have been ineligible to participate in that year’s postseason since 2014, that’s not the case for those suspended under the DV policy introduced in August 2015. Not only does that make for a jarring incongruity given the relative severity of those transgressions, allowing recently suspended players to participate in the playoffs can lead to unsavory behavior on the part of teams, as we’ve seen multiple times since the policy was introduced. It’s time for the players and the league to close this loophole. Germán was placed on administrative leave on Thursday in connection with an incident that reportedly took place at the pitcher’s residence late Monday or early Tuesday, after the pitcher and his girlfriend appeared at CC Sabathia’s charity gala. The 27-year-old righty, who in his first full major league season has emerged as a viable rotation cog, had pitched in relief of Sabathia on Wednesday night in preparation for a more flexible role come the postseason. The announcement of his placement on leave dimmed some of the luster of the Yankees’ victory over the Angels later that night, which not only marked their 100th win but clinched their first AL East title since 2012. No police report was filed in connection with the incident at Germán’s residence, and no charges were filed. The incident was reported directly to the league, which, according to The Athletic’s Lindsey Adler, conducted a preliminary investigation on Tuesday and Wednesday, interviewing people around the team. While Yankees manager Aaron Boone said he heard “whispers” of an investigation on Wednesday, the team was not informed until Thursday morning that the pitcher had been placed on administrative leave. Via Adler: “I learned on the drive in that he was going on administrative leave,” Boone said Thursday afternoon. “Heard some of the whispers and whatnot, but this is a Major League Baseball investigation and issue. We’re just trying to be as cooperative as we can while this goes on.” A player can be placed on administrative leave for up to seven days, though that period can be extended; during that time, he is paid but not allowed to have any contact with his team. By inference, the mere placement of a player on leave means that the league and the union agree that the allegation in question is substantive — that there is enough evidence to merit preventing him from playing. As Adler noted, “[S]ources told The Athletic the union had the option to appeal his immediate placement on administrative leave but did not take the opportunity to do so.” Not every player suspended under the policy was placed on leave beforehand, but it is worth noting that the only two of the 14 players investigated who were not suspended, Yasiel Puig and Miguel Sanó, did not require any leave, as the allegations pertained to incidents that took place in the offseason. Neither was ultimately disciplined due to insufficient evidence that they violated the policy. Once the league’s investigation concludes, a suspension without pay generally follows, with the time missed on administrative leave included within the penalty. The Dodgers’ Julio Urías, who was arrested on May 13 on suspicion of domestic violence after witnesses alleged that he shoved a woman, missed five games while on administrative leave in May and was then allowed to return to the active roster. His prosecution was deferred on a conditional basis. When the investigation was completed in August, the league handed down a 20-game suspension and retroactively credited him for those five days already served. That Urías is allowed to participate in the postseason, joining the ignominious ranks of Roberto Osuna and Aroldis Chapman, but Germán is not is merely a fluke of timing. Last year, Osuna pitched for the Astros in the postseason after serving a 75-game suspension during which he was traded from Toronto to Houston. In 2016, the same was true of Chapman, who pitched for the Cubs after being acquired from the Yankees following his service of a 30-game suspension. The participation of both left a bad taste in the mouths of many fans and observers, as did the conduct of their teams. Here it’s worth noting that in one case, that of Phillies outfielder Odubel Herrera, the league and the union have deviated from this template. Herrera was arrested on May 27 in Atlantic City and charged with simple assault of his 20-year-old girlfriend, who “had visible signs of injury to her arms and neck that was sustained after being assaulted by her boyfriend, David Odubel Herrera, during a dispute.” Herrera was placed on administrative leave immediately, a leave that was extended multiple times, ultimately running to July 5. At that point, the league announced that Herrera would be suspended through the remainder of the season, with the suspension officially retroactive to June 24, a total of 85 games. He will actually wind up missing 109 games; apparently, the first 24 games of his absence were considered paid leave. Additionally, as part of the ruling that Herrera accepted, he would not be allowed to participate in the postseason. While Herrera’s girlfriend refused medical attention at the time and later refused to testify, resulting in the criminal charge being dropped, the inference to be drawn from the league’s actions is that a stronger penalty was mandated, perhaps due to the severity of the evidence against him or an ongoing pattern of abuse, and that latitude already exists to deny suspended players a chance to take the field in October. Returning to Chapman, memories of the Yankees’ conduct as it pertained to Chapman were rekindled on Thursday when the team issued a boilerplate statement to announce Germán’s absence. “We fully support all measures being undertaken by the Commissioner’s Office pursuant to the Policy on Domestic Violence. We support this policy which reinforces that domestic violence has no place in our society and cannot be tolerated. We have followed the lead of Major League Baseball and will continue to provide our complete cooperation throughout the investigative process. We reserve any further comment until the investigation reaches its conclusion. All questions pertaining to this matter should be directed to the Office of the Commissioner.” The Yankees showed their tolerance for Chapman’s actions when they acquired him from the Reds for four minor leaguers in December 2016, that after a deal that would have sent the fireballing closer to the Dodgers was scuttled by the revelation of a police report that the pitcher had allegedly fired eight gunshots in the garage of his home in Davie, Florida following an October 30 altercation with his girlfriend. The Yankees used the likelihood of Chapman’s suspension — the first implemented under the new policy — and the possibility that he could face criminal charges to lessen the cost of trading for him, as general manager Brian Cashman himself admitted at the time. “Given the circumstances that exist, the price point on the acquisition has been modified,” he told reporters. Less than a month after the trade, Broward County prosecutors announced that they would not file criminal charges. With the legal matter resolved, the suspension served, and the team out of playoff contention come July, Cashman then traded Chapman to the Cubs in exchange for a more substantial package headlined by Gleyber Torres, who has since become a two-time All-Star. Still eligible to participate in the postseason, Chapman played a significant role in the Cubs winning their first World Series in 108 years. When he reached free agency, the Yankees further demonstrated their intolerance for Chapman’s transgressions by signing him to a five-year, $86 million contract, still a record for a closer. Consider him chastened. Both the Yankees and Cubs operated within the limits of existing rules, but their actions in connection to Chapman were unpalatable. Likewise with the Astros, who acquired Osuna from the Blue Jays on July 30, 2018 while he was still serving his suspension. Houston GM Jeff Luhnow went so far as to tout the Astros’ “zero tolerance policy related to abuse of any kind,” a strange thing to say when acquiring a player currently being disciplined for suspicion of assaulting the mother of their three-year-old son. When the woman, who had returned to her native Mexico, refused to return to Toronto to testify, the charges against Osuna were dropped in exchange for a peace bond and a one-year agreement he stay away from her and continue counseling. In cases of domestic violence, outcomes such as those pertaining to Chapman, Osuna, Germán, and Urias are hardly uncommon. Sometimes incidents aren’t reported to the police, or reported but not investigated, or investigated without arrests being made, or charges being filed. Even when charges are filed, sometimes there are no guilty pleas or convictions, or at least no jail time. A 2014 study of 517 domestic violence cases, written by Sherry Hamby, David Finkelhor and Heather Turner, and published in the journal Psychology of Violence, found that less than 2% of the offenders received any jail time. Our society’s ongoing difficulty (and often, plain failure) with preventing and mitigating the complex problem of domestic violence is one reason why we turn to sports leagues to address such infractions when they pertain to athletes, who are expected to adhere to certain standards of conduct because of their high-visibility jobs and lucrative compensation. The efforts of MLB and the MLBPA in this area, which were crafted in consultation with experts in the field, aren’t limited to doling out punishments; they include regularly educating players about domestic violence, sexual assault and child abuse, all of which are part of the same policy. As cathartic as it may be to advocate a zero-tolerance stance towards domestic violence within the game, experts believe that such an approach would do far more harm than good. As Cindy Southworth, the executive vice president of the National Network to End Domestic Violence, told USA Today Sports in 2016: “Counter-intuitively, we don’t want sports leagues to have a zero tolerance policy. And the reason for that is if we would say that the first time your partner calls 911 your career is over, her risk of homicide shoots through the roof. Because he has nothing to lose and everything to lose at the same time… the pressure then on the victim not to call for help is massive.” So, this is not to advocate a one-and-done stance towards DV offenders, or to complain that the league is getting it completely wrong with the suspensions; it’s to bring the policy more in line with PED policy as it pertains to the postseason. Since the start of 2014, players suspended for taking PEDs are ineligible to participate in that year’s postseason, a change in policy that arose in the wake of an outcry over the potential postseason availability of Nelson Cruz (then with the Rangers) and Jhonny Peralta (then with the Tigers) as they returned from Biogenesis-related suspensions near the end of the 2013 season. While the logic behind the two policies’ discrepancy in this area is founded in the fact that only the former is connected to on-field performance, the results clash given the relative severity of the transgressions. Yes, taking PEDs — which may or may not actually enhance performance, ahem — can have deleterious physical effects on a player, but those pale in comparison to intentionally causing physical harm to another human being, particularly when that person is a spouse or partner who can’t easily disentangle herself from the situation. And as we’ve already seen, teams are ready and willing to exploit the fact that DV-suspended players may be acquired at discounts. Changing the rule so that suspended players are also banned from that year’s postseason would increase the impact of such suspensions, and greatly reduce teams’ incentives to acquire such players. Changing the rule would require the MLBPA to approach the league, which would likely support such a rule. As MLB Deputy Commissioner and Chief Legal Officer Dan Halem told The Athletic’s Katie Strang last year in connection with the Osuna case, “MLB generally would never oppose any proposal by the players to strengthen the penalties for conduct.” Such a change would help to recenter the league’s attention back toward victims and avoid potentially celebrating a player whose suspension is still fresh. Lest we forget, Chapman was called upon to save Game 7 of the 2016 World Series against the Indians; had he succeeded in sealing the victory that ended the Cubs’ epic championship drought, the highlights of him celebrating on the mound would have played until the end of time, a reminder of the game’s insensitivity towards victims and survivors of domestic violence. Changing the rule would additionally spare viewers, many of whom are victims and survivors themselves, the awkward, and often times thoughtless, rhetoric that arises from the more insensitive corners of sports media, where a suspended player’s moment of on-field success is positioned as “redemption” or “overcoming distractions.” While the outcome of the investigation is not yet official, it appears that Germán won’t play a role in a potential Yankees World Series win. But the specter of Chapman — whose suspension is now three years gone, though for many, the bad taste lingers — looms large, as does the past suspension of Osuna, as well as the presence of Urias. The policy was meant to acknowledge that there are moments in people’s lives that require us to set baseball aside, moments against which on-field heroics, no matter how dazzling, will always be found wanting if their weight and importance are measured. But as it functions now, the postseason loophole allows teams to turn those awful moments into inefficiencies to be exploited on the way to a championship, further pulling the focus from where it ought to be: on helping to make whole those whose lives have been marred by violence and fear. It’s too late to do anything about this coming postseason, but the league and the union should make every effort to close this loophole.