Josh Hader is a lefty relief pitcher for the Milwaukee Brewers. You know this; you read this site. Josh Hader has had, statistically speaking, an awesome season. You don’t accidentally strike out 17 guys per nine — in this case, better than half of all batters he’s faced. And Hader seems to have embraced a role of which other pitchers might be wary of great. So it wasn’t surprising when Jon Heyman tweeted this:
Josh Hader is my new favorite all star. I named him nicest, most unassuming all star and he gave me a lefty fist bump. From nearby Maryland, this is a real treat for him and his family. #crew
— Jon Heyman (@JonHeyman) July 17, 2018
By now, you probably know the rest of this story. During the All-Star Game, whilst Hader was in the midst of a surprisingly poor performance on the mound, Hader’s high-school record suddenly came back to light. As the Washington Post’s Kevin Blackistone explained,
Tuesday night’s revelation [was] that Josh Hader, one of the pitchers showcased in Major League Baseball’s 89th All-Star Game, was a serial hate tweeter as a star athlete at Old Mill High School in suburban Baltimore’s Anne Arundel County.
It’s probably important before continuing to understand what kind of hate, exactly, we’re talking about. (Warning: the content is pretty offensive.)
What we have here is unmistakably racist, homophobic, antisemitic, and misogynistic hate speech. And that doesn’t happen by accident, either.
[W]hile Hader deserves our immediate scorn for his vile words, no one should give up on him. He hasn’t been known to exhibit any bad behavior around the Brewers, and it’s possible he was just an idiot as a kid (some of the tweets are believed to have been taken from a rap song, but that’s really not much of an excuse).
He seems child-like now, so I can only imagine what he was like as a 17-year-old. Perhaps he has matured a lot since.
During last night’s game we became aware of Mr. Hader’s unacceptable social media comments in years past and have since been in communication with the Brewers regarding our shared concerns. After the game, Mr. Hader took the necessary step of expressing remorse for his highly offensive and hurtful language, which fails to represent the values of our game and our expectations for all those who are a part of it. The Office of the Commissioner will require sensitivity training for Mr. Hader and participation in MLB’s diversity and inclusion initiatives.
Josh Hader addresses the tweets that surfaced during the game pic.twitter.com/Zzh6uS2frH
— Ryan Fagan (@ryanfagan) July 18, 2018
Which, more or less, brings the situation to the present moment. It appears as though sensitivity training will represent the extent of MLB’s intervention in this issue. Like others, though, I was curious if other options were even on the table. Accordingly, I’d like to address two questions here, both (a) could MLB discipline Hader for actions of seven years ago and, if so, (b) at what kind of punishment could they hypothetically arrive?
As to the first issue, Article XII(a) of the Collective Bargaining Agreement states that a player “may be subjected to disciplinary action for just cause by his Club, the Chief Baseball Officer or the Commissioner.” The question is whether Hader’s tweets constitute just cause for discipline. In a vacuum, they clearly are. The uniform MLB contract, for example, cites “good sportsmanship” in one passage:
3. (a) The Player agrees to perform his services hereunder diligently and faithfully, to keep himself in first-class physical condition and to obey the Club’s training rules, and pledges himself to the American public and to the Club to conform to high standards of personal conduct, fair play and good sportsmanship.
And “good citizenship” in another:
[Termination] By Club
7. (b) The Club may terminate this contract upon written notice to the Player (but only after requesting and obtaining waivers of this contract from all other Major League Clubs) if the Player shall at any time:
(1) fail, refuse or neglect to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the Club’s training rules; or
(2) fail, in the opinion of the Club’s management, to exhibit sufficient skill or competitive ability to qualify or continue as a member of the Club’s team; or
(3) fail, refuse or neglect to render his services hereunder or in any other manner materially breach this contract.
Hader’s tweets are clearly examples of neither.
And yet… they were from 2011 and 2012, when Hader was a teenager, before he was drafted, before he was a minor leaguer, before he was a member of the Astros’ farm system or the Brewers’ varsity club. (Hader was drafted in June of 2012 by the Orioles. Because he locked his account soon after his tweets became publicly circulated, it’s not clear if he any of his comments were published in June of later.) From a legal perspective, that matters. Disciplining an employee for conduct performed before he’s been hired is a dicey proposition any time it isn’t an at-will relationship. (That’s one reason employers conduct background checks.) That’s because you can’t breach a contract by something you do before a contract is formed.
There are exceptions, naturally — lying or active concealment, for example. (That’s called “fraud in the inducement.”) So if the Astros or Brewers asked Hader if he’d ever made racist tweets, and Hader said no, then there would be grounds both for discipline and potential rescission (cancellation) of the contract by the Brewers.
On the other hand, as noted above, it’s not entirely clear that Hader’s conduct was limited to the period before he was signed. (Furthermore, Hader attempted to dismiss his comments as “some rap lyrics being tweeted.” As the Daily Beast’s Corbin Smith points out, the notion that a tweet featuring just “KKK” or “white power” with a clenched fist represents an example of rap lyrics is improbable.
Hader’s attribution of his comments to rap lyrics appears, at best, to be a weak excuse. And that’s a charitable interpretation. At worst, they’re intentionally misleading — and, if that’s the case, then that is actually something for which both MLB and the Brewers can discipline Hader. Now, there are explanations for this, too. Maybe Hader was embarrassed. Maybe Hader is reluctant to make unqualified apology. We’ve all said things that were stupid, of course. On the other hand, we all have not voiced support for white supremacy and then blamed that support on rap lyrics. And that’s important to note. Hader was not simply advocating for different political views — he appeared to be celebrating a philosophy that advocates racial genocide.
So whereas sensitivity training may be sufficient punishment for the tweets of seven years ago, there’s also the question of what punishment, if any, is appropriate for an apology that quite possibly misrepresents the reality of the situation. In the law, punishments are determined by looking at precedents, parallel situations which came before. But there are no real analogues for this situation. Yunel Escobar was suspended three games for writing a homophobic message in his eye black, but that was while he was playing. Yulieski Gurriel was suspended five games for a racist gesture directed at Yu Darvish, but that, too, was during a game. Some have compared Hader to John Rocker, whose ability to throw 95 mph allowed him to survive for years as the Braves’ closer despite making comments even more racist than Hader’s. But even Rocker eventually faced discipline, in the form of a 28-game, 73-day suspension in 2000; Rocker became the first player ever suspended for public racist comments. And while Rocker’s comments didn’t occur during a game, they were published in a Sports Illustrated interview with Jeff Pearlman after he’d already reached the big leagues.
Perhaps the most analogous situation involves Steve Clevenger, who was suspended for the remainder of the 2016 season for racist tweets calling black youth “thugs” and targeting Black Lives Matter, among others. But even Clevenger’s case isn’t a perfect comparison. On the one hand, Clevenger, too, made racist statements on Twitter and was suspended after apologizing; on the other, Clevenger made those statements during a major-league season. And two other factors that are important to note: Clevenger made the statements on a protected account, so they could only be seen by followers. And Clevenger wasn’t suspended by MLB at all. Instead, he was suspended by the Mariners.
That latter point is important. Hader was disciplined under the Commissioner’s “just cause” authority, but the Brewers have separate authority to discipline Hader. That dual system exists across most professional sports; just last week, the Miami Dolphins announced a policy to suspend for four games (a full quarter of the NFL season) any player who doesn’t stand for the national anthem.
So could MLB, or the Brewers independently, suspend Hader? Almost certainly yes. Even if he could not be punished for the 2011 tweets, any tweets from after the June draft in 2012 (should they exist) and his “misattribution” of “white power” and “KKK” to rap lyrics are punishable both by the Commissioner under the CBA and by the Brewers under the model contract. How do we know? Rocker’s suspension was eventually overturned on appeal — reduced from 28 games to 14 and the fine from $20,000 to $500. But the arbitrator, Shyam Das, found that while there was a cap on fines for off-field behavior, unpaid suspensions for off-field speech, even speech unrelated to baseball, were not in violation of the CBA. In other words, there is ample precedent to support a suspension should the Brewers or MLB decide to impose one.
But it’s doubtful the Brewers are going to suspend him. In his first appearance for the Brewers following the All-Star game, fans at Miller Park gave him a standing ovation. And some of his teammates, including players of color, supported him.
First of all I want to show my support to my friend and teammate, Josh Hader.
He made a mistake 7 years ago. He admitted, he apologized and most important: He learned from it.
— Jesus Aguilar (@JAguilarMKE) July 18, 2018
And Lorenzo Cain added this to MLB.com’s Adam McCalvy:
“He’s young, we all say some crazy stuff when we’re young,” said Cain. “That’s the reason I don’t have social media, things like this. You always get in trouble for things you say when you’re younger. We’ll move on from it. The situation is what it is. I know Hader, he’s a great guy. I know he’s a great teammate. I’m fine. Everybody will be OK. We’ll move on from it.
“At the end of the day, we’ve all said crazy stuff growing up, even when we were 17, 18 years old. If we could follow each other around with a recorder all day, I’m sure we’ve all said some dumb stuff. We’re going to move on from this.”
Asked whether Hader specifically apologized, Cain said, “I didn’t ask for an apology. I wanted to understand the situation before I talked to you guys. … I heard about the hate comments, that’s all I heard. We’ll talk more about it once we get on the plane.”
Josh Hader apologized to his teammates, yes. They accepted that apology, yes — and all we can do is take his teammates’ support at face value. It’s at least worth acknowledging, however, the awkward position in which those teammates have been placed. Hader is, by most metrics, the best relief pitcher in the game and the most dominant left-handed reliever since Billy Wagner. The Brewers, a team in contention, want him on the field, because the step down from Hader to a replacement-level reliever is massive, perhaps the largest in baseball. It’s why the Yankees feel comfortable with Aroldis Chapman. It’s why the Blue Jays have no plans to trade Roberto Osuna. It’s worth asking: did Hader’s teammates accept him because he apologized or because his talent is integral to helping the club earn a spot in the postseason? Would the Brewers — or their fans — accept Hader back if he were pitching like the 2018 version of Brad Brach?
My point here, ultimately, is not that Hader should be run out of baseball. It’s not even that Hader should be suspended, really. But it’d be ideal if there were a resolution to this that ultimately left all parties better off, that helped improve our collective understanding of the pain and fear such vile sentiments can produce. Hader’s conduct to date doesn’t promise that kind of resolution, but there is time for that to change. Jeff Pearlman ultimately never felt sorry for publishing his piece on Rocker. Ideally, looking back on this moment in the future, it will be viewed as transformative and not indicative of worse things to come.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.