Larry Baer and the Nature of Plenary Power

Late Friday, news broke that San Francisco Giants Chief Executive Officer Larry Baer had engaged in a physical altercation with his wife, Pam, during a public argument, which was caught on video.

Giants CEO Larry Baer pulled his wife out of a chair and caused her to fall to the ground in a San Francisco plaza on Friday morning, an incident captured on video by a witness and under investigation by city police.

The video shows Baer stepping over his wife, Pam, as she sits in a chair in the plaza in Hayes Valley before noon. She screams, “Oh, my God, no, help!” as Baer appears to try to grab a phone out of her right hand.

You can see that video here; we’re not going to embed it due to its disturbing nature. Not long after the incident was initially reported, Baer released a statement purporting to clarify the events shown on video.

Larry Baer told The Chronicle in an interview, “My wife and I had an unfortunate public argument related to a family member and she had an injured foot and she fell off her chair in the course of the argument. The matter is resolved. It was a squabble over a cell phone. Obviously, it’s embarrassing.”

Later Friday, the pair issued a joint statement through the Giants: “Regrettably, today we had a heated argument in public over a family matter. We are deeply embarrassed by the situation and have resolved the issue.”

After a public backlash, however, Baer issued an additional statement apologizing for his conduct.

Pam Baer issued a statement of her own.

It is worth noting that Pam’s description of events does not fully match those depicted in the video; she does not, for instance, mention yelling for help.

Today, the Giants’ Board of Directors released a statement noting that Baer has asked to take away from the team.

Ordinarily, these events, unfortunate though they are, wouldn’t be the province of FanGraphs. However, Baer’s status as Chief Executive Officer of the Giants means that there could be real repercussions for him and the team as a result of his conduct. Baer was appointed by the team’s owners to oversee its operations; he actually helped to constitute the team’s current ownership group, and owns a small stake himself. He is also the Giants’ designated “control person,” and attends league ownership meetings on their behalf. The control person is the face of the franchise to Major League Baseball; they’re “accountable to MLB for the operation of the team and for its compliance with the rules of baseball.” In other words, they’re the member of the ownership group the team designates as the person in charge of its operations.

As a result, Baer is subject to a policy substantially similar to the Joint Domestic Violence, Sexual Assault, and Child Abuse policy found in the Major League Baseball Collective Bargaining Agreement, which requires parallel prohibitions under a separate policy for non-player employees.. Article X of the Joint Policy (you can find it on page 325) says this (emphasis mine):

The Parties agree that Major League Baseball, its affiliated businesses, every Club and the Players Association shall institute Domestic Violence, Sexual Assault and Child Abuse Policies that are comparable both in terms of scope and discipline for their respective employees, managers, executives, and owners. The cost of implementing and administering these comparable policies will be the responsibility of the individual organization.

In other words, we can reasonably expect that Baer is covered by a policy that contains approximately the same prohibitions, and approximately the same discipline, as the Joint Policy. And we can also expect that this policy is administered at least in part by Major League Baseball, which has already begun an investigation. Indeed, Baer appears to have the ignominious distinction of being the first non-player investigated under the league’s domestic violence policy.

So what can we expect in terms of discipline for Baer? Craig Calcaterra took a look at this, but his analysis was performed in the context of discipline for owners. The problem is that while Baer does own a small stake in the team, he also works for the team in an employee capacity as a representative of the owners. So the relevant question is what power Commissioner Rob Manfred has to discipline Baer and the Giants for this sort of conduct, not just as an owner, but as an employee as well.

As far as disciplining team employees goes, things are actually fairly straightforward. The Major League Rules leave little ambiguity that teams, and those they employ, are subject to the Commissioner’s disciplinary power. Rule 22, for instance, states:

All Clubs and players shall submit themselves to the discipline of the Commissioner as provided in the Major League Constitution and accept the Commissioner’s decisions rendered in accordance with the Major League Constitution and these Rules.

And Rule 24 goes one step farther:

Both the Commissioner and a Club are entitled to discipline any manager, trainer, coach, scout, or other personnel who is not a player, in case of a violation of contract, the Major League Constitution, the Major League Rules, the Commissioner’s regulations, or other rules, policies and guidelines. Such discipline may include fining, dismissing, releasing, suspending or expelling the offender. Any Club dismissing, releasing, suspending or expelling any such person shall at once notify the Commissioner’s Office in writing stating the cause of such action. . . . Unless prior approval of the Commissioner is granted, no person who has been suspended or otherwise declared ineligible shall perform any function for any Club or any other entity related to the Clubs during the duration of the suspension or period of ineligibility.

So what does the Major League Baseball Constitution say about the commissioner’s disciplinary power?

In the case of conduct by Major League Clubs, owners, officers, employees or players that is deemed by the Commissioner not to be in the best interests of Baseball, punitive action by the Commissioner for each offense may include any one or more of the following:

(a) a reprimand; (b) deprivation of a Major League Club of representation in Major League Meetings; (c) suspension or removal of any owner, officer or employee of a Major League Club; (d) temporary or permanent ineligibility of a player; (e) a fine, not to exceed $2,000,000 in the case of a Major League Club, not to exceed $500,000 in the case of an owner, officer or employee, and in an amount consistent with the then-current Basic Agreement with the Major League Baseball Players Association, in the case of a player; (f) loss of the benefit of any or all of the Major League Rules, including but not limited to the denial or transfer of player selection rights provided by Major League Rules 4 and 5; and (g) such other actions as the Commissioner may deem appropriate.

In other words, the Commissioner can exercise a tremendous amount of discretion when it comes to determining punishments in cases like this. This kind of blanket authority is known as plenary power: “Power that is wide-ranging, broadly construed, and often limitless for all practical purposes.” If the Commissioner decides that you’ve behaved in a manner which violates a Rule, he has complete authority to punish you for doing so. We saw this when Major League Baseball suspended Padres General Manager A.J. Preller for 30 days for failing to disclose that southpaw Drew Pomeranz was injured prior to trading him to the Boston Red Sox. Preller agreed to accept that discipline under Rule 22 with no recourse even before it was issued: that’s how plenary authority works. Similarly, then-Commissioner Fay Vincent suspended late Yankees owner George Steinbrenner for life back in 1990; he was later reinstated. So Manfred could strip Baer of his role as CEO, but allow him to keep his ownership stake – or both, or vice versa.

Now, you might ask why the Commissioner’s authority is greater here than it is concerning players. That’s because the players have collectively bargained for greater protections, such as appeal rights. In fact, as you can see above, the MLB Constitution defers to the CBA as to player discipline – but contains very different limits as to non-players. Front office personnel, who aren’t unionized, are essentially subject to the Commissioner’s plenary authority. And the “such other actions” catchall essentially means that the Commissioner can do what he wants. The Commissioner is limited by the expressly included fine restrictions, but a person fined $500,000 would, in theory, have no appeal rights to anyone other than the Commissioner himself.

You might also wonder why the Commissioner has more power to discipline an executive under the Joint Policy than he does a player. That’s because of that “scope” and “discipline” language we mentioned before – the appeal rights (i.e., the players’ safeguards) don’t apply here. In other words, the employees of a team are subject to a policy that is required to cover the same conduct, but doesn’t need to follow the same procedures for meting out discipline.

So what can Manfred do to punish Baer? He can reprimand him. He can fine him up to $500,000 with no appeal. He can suspend him for any period of time, ranging from one day to forever, barring any involvement with the Giants during that period. He can order him replaced as the Giants’ control person. He can bar him from owners’ meetings for any period of time. Baer’s role as an owner makes the situation more complicated — Manfred could strip Baer of his role as CEO, but allow him to keep his ownership stake – or both, or vice versa, though given the circumstances under which owners have been removed historically, Baer being forced out seems unlikely here. And it’s worth noting that the Giants as an organization have the authority to punish Baer, though it’s unclear whether that option is even on the table beyond the personal leave the Giants indicate he voluntarily requested; also unclear is who will assume the position of control person in his absence.

The problem is that, as we mentioned before, no front office employee or executive has ever been investigated or disciplined under the domestic violence policy before, so there’s no real precedent here. Further, Pam Baer’s statement downplaying the incident means that she may be unwilling to cooperate with MLB investigators, making any discipline more complicated. As a result, we really have no idea how Manfred will respond to this. If he uses player suspensions as precedent, we may be looking at a lengthy one. But it’s also worth noting that Manfred may be unwilling or unable to harshly discipline a team’s control person, given that the 30 control agents are, in essence, Manfred’s bosses. On the other hand, the Players’ Association would justifiably be irked if Baer went undisciplined, with the message being sent that front office executives aren’t subject to the same standards of conduct that players are.

Whatever Manfred decides is going to set a pretty significant precedent moving forward. It remains to be seen what message he and Major League Baseball want to send – and who they want the recipients of that message to be.

We hoped you liked reading Larry Baer and the Nature of Plenary Power by Sheryl Ring!

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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.

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Fredchuckdave
Member

Baer and Robert Kraft are sentenced to live on a private island for 3 months, said island is of course filled with mountains of hookers and blow.

HappyFunBall
Member
Member
HappyFunBall

Better yet, only one hooker and a very limited supply of blow. They can fight it out.

Webs
Member
Webs

<bender>Forget the hookers. Forget the blow. Aw, forget the whole thing.</bender>