Examining MLB’s New Domestic Violence Policy by Nathaniel Grow August 24, 2015 During the height of the furor over the National Football League’s mishandling of the Ray Rice case last fall, both Major League Baseball and the Major League Baseball Players Association agreed to work together to formulate a new domestic violence policy for the league. On Friday, the two sides announced that they had finally reached an agreement on a new comprehensive policy covering not only incidents of domestic violence, but cases of sexual assault and child abuse as well: MLB and the MLBPA have announced an agreement on a Joint Domestic Violence, Sexual Assault and Child Abuse Policy. pic.twitter.com/C1eTGljC6r — MLB Communications (@MLB_PR) August 21, 2015 In addition to establishing new player treatment and education protocols, the policy gives the Commissioner’s Office the authority to investigate any allegation of domestic violence, sexual assault, or child abuse involving a major-league player. Commissioner Manfred has also been given the power to place a player under investigation on paid Administrative Leave for up to seven days, a placement that the player can immediately appeal to panel of arbitrators. Following the completion of MLB’s investigation, the new policy gives the commissioner the power to impose whatever punishment “he believes is appropriate in light of the severity of the conduct.” In other words, the agreement does not establish any minimum or maximum penalties for domestic violence, sexual assault, or child abuse cases. In fact, the policy explicitly states that a player does not even need to be criminally convicted of a crime in order to be punished by the commissioner. Once again, however, the player will have the right to appeal his punishment to a panel of arbitrators. So how does MLB’s new policy compare with the league’s prior treatment of domestic violence? And what types of penalties might players realistically face if the commissioner determines they have violated the new agreement? Previously, because MLB had no specific policy in place governing cases of domestic violence, sexual assault, or child abuse, Commissioner Manfred would have had to rely on his authority under either the “Just Cause” or “Conduct Detrimental or Prejudicial to Baseball” provisions of the league’s collective bargaining agreement to impose punishment on players in these cases. These two catch-all provisions – located in Articles XII (A) and (B) of the CBA, respectively – permit the commissioner to impose whatever punishment he believes is necessary after a player commits an act injurious to the game (subject to a potential appeal to an arbitration panel, of course). In this respect, then, MLB’s new domestic violence agreement does not represent a significant change in policy. Prior to Friday’s announcement, the commissioner had the authority to potentially impose limitless punishment for acts of domestic violence, sexual assault, or child abuse, with the player having the right to appeal any discipline to an arbitration panel. The new agreement maintains this same framework, even noting that any appeal filed by a player under the new policy will be decided under a “just cause” standard of review. This means that, as before, under the new policy an arbitration panel will have to determine whether the commissioner’s discipline was warranted under the circumstances. Of course, even though the commissioner previously had the power to impose punishment on players in these cases, MLB has rarely exercised that authority in the past. As many fans are aware, for example, there have been numerous examples of players accused or convicted of domestic violence who nevertheless faced little to no punishment from the league. So Friday’s announcement undoubtedly signals a new era of discipline for these sorts of offenses. Along those lines, the new policy explicitly states that Commissioner Manfred will not be bound by the levels of discipline – or lack thereof – previously meted out for acts of domestic violence, sexual assault, or child abuse when issuing sanctions in future cases. So players disciplined for domestic violence in the future will not be able to argue that their punishment is too severe in light of the fact that previous players faced little to no discipline for similar acts. As a result, because the new agreement does not specify any minimum or maximum penalties to be assessed in these cases, the first few players to be found to have violated the new policy will be facing an uncertain level of punishment for their misdeeds. That having been said, the new policy does specify that although prior punishment for acts covered by the agreement will not serve as precedent in future cases, “all other disciplinary past practice and precedent will remain relevant.” This means that in order to determine what level of punishment is appropriate in future cases, Commissioner Manfred – and, ultimately, an arbitration panel – will have to compare the facts of a player’s alleged domestic violence, sexual assault, or child abuse to cases in which players were previously suspended on other grounds. It is by no means clear exactly how that comparison should be made, however. For instance, under MLB’s Joint Drug Agreement, a player’s first positive test for an unauthorized performance enhancing drug results in an immediate 80-game suspension. While PED use certainly more directly impacts the integrity of on-the-field competition than does an off-the-field act of domestic violence, sexual assault, or child abuse, one could credibly contend that the latter are much more serious offenses given the physical and emotional injuries they inflict on an actual victim. So from that perspective, Commissioner Manfred would arguably be justified in suspending a player involved in a domestic violence incident 80 or more games under the new policy. Similarly, MLB suspended Roberto Hernandez (or the artist formerly known as Fausto Carmona) for 20 games in 2012 for engaging in age and identify fraud, undoubtedly a much lesser offense in the grand scheme of things than the sorts of crimes covered under MLB’s new policy. This would suggest that a player accused of domestic violence, sexual assault, or child abuse should be subjected to a punishment substantially more severe in nature. On the other hand, a player might argue that his violation of MLB’s new policy should instead be compared to incidents in which players were suspended for other sorts of hateful acts. Back in 2012, for instance, Delmon Young was suspended for seven games following his arrest in New York City on a hate crime harassment charge, after he was accused of yelling anti-Semitic epithets during a fight outside his hotel. Similarly, Yunel Escobar was suspended for three games that same year for displaying a homophobic slur written in Spanish on his eye black. And perhaps most famously, MLB suspended John Rocker for all of spring training plus the first 28 games of the regular season back in 2000 after a highly publicized incident in which he disparaged immigrants, persons of color, and homosexuals in an interview with Sports Illustrated. Notably, however, an arbitrator ultimately reduced that suspension to a mere 14 regular-season games after Rocker appealed his punishment. Even if one were to view domestic violence, sexual assault, and child abuse as being categorically worse than the behavior of Young, Escobar, or Rocker, a player could nevertheless argue that these precedents suggest that any punishment under the new policy should at most fall somewhere in the 25-30 game range in most cases, rather than the suspensions of 80 or more games authorized under the JDA, especially since offenses under the new policy involve strictly off-the-field conduct. All in all, then, despite Friday’s announcement it remains uncertain just how severely MLB will be able to penalize players under the new domestic violence, sexual assault, and child abuse policy. Indeed, even if Commissioner Manfred initially imposes a severe punishment on a player accused of violating the policy, it is entirely possible that that discipline will be substantially reduced by an arbitrator. What does appear certain, however, is that the days of MLB players avoiding any punishment at all for acts of domestic violence, sexual assault, or child abuse are now behind us.