Roberto Osuna, the Blue Jays, and the Limits of Presuming Innocence by Sheryl Ring May 10, 2018 The Toronto Blue Jays managed the singular feat Tuesday of being no-hit and having that no-hitter register as only the second-worst news of the day. Whenever that happens, you know you’re having a very bad day. Per ESPN: All-Star closer Roberto Osuna of the Toronto Blue Jays was charged with assault Tuesday and put on administrative leave by Major League Baseball, preventing him from playing for at least a week. Osuna assaulted a woman, according to Toronto police. Now, obviously there’s a lot to unpack here, and we don’t have all of the facts. In fact, at this point all we know is that Osuna was arrested for allegedly assaulting his girlfriend, then released. Multiple sources have confirmed that the incident in question was indeed one of domestic violence. But the Blue Jays had what might be considered an interesting response to the allegations. “We are taking the matter extremely seriously, as the type of conduct associated with this incident is not reflective of our values as an organisation,” the team said. Osuna has been placed on administrative leave per Article II of the Joint Domestic Violence, Sexual Assault and Child Abuse Policy in the CBA, a move the team says it “fully supports.” Let’s start with the Blue Jays’ statement. As a lawyer, among the first things one learns is that words matter, and what struck me about that statement is what was missing from it. Nowhere in that statement is there any qualification, like the words “allegedly” or “if true.” Now, to be fair, John Gibbons was more measured in his response: “You’re dealing with human beings, regardless of walk of life. Hopefully there’s nothing there,” said Gibbons. “I love the kid, not because of what he’s done for us on the field, but because of who he is and my relationship with him over the years. Really, society in general, there’s got to be a zero-tolerance policy, you’ve got to protect the vulnerable and those who can’t protect themselves. Hopefully when it’s all said and done, he’s back with us, it’s behind him and things turn out fine.” But even there, any qualification is lukewarm at best. And that is very odd, especially for Canada. Remember from our discussion of Miguel Sano that a presumption of innocence does not apply to things like employers or public debate. As I explained then: In other words, due process is being notified of a government or quasi-government proceeding and having an opportunity to participate in it fairly. It’s also not equivalent to a presumption of innocence, either, although that’s become part of due process in criminal proceedings. Most people are surprised to learn that the Constitution nowhere explicitly contains a requirement that people be presumed innocent. Courts added that requirement later; in a case called Pagano v. Allard, the court does a fairly decent job of explaining how courts interpreted the Fourteenth Amendment to graft a “presumption of innocence” onto procedural due process after that amendment was ratified. In other words, due process requires that a judge and jury presume a defendant is innocent before trying them for a crime and make the state prove it. It doesn’t require that FanGraphs readers (or Sano’s employer, for that matter) do the same. Canada has a much stronger presumption of innocence than the United States does. While there is no express presumption of innocence in the American Constitution, it’s actually expressly written into Section 11(d) of the Canadian Charter of Rights and Freedoms. So it’s a bit puzzling to see a Canadian team take a much stronger tack against its own player than American teams in similar circumstances. For reference, compare the Jays’ statement on Osuna to what the Twins said about Sano, and the Rockies’ statement on Jose Reyes: Once again, we find that word, allegations. The Atlanta Braves’ statement regarding Hector Olivera is quite similar, as well. I think you get the idea. The Jays have lawyers. As such, it’s unlikely that the omission of the word “allegations” was either accidental or a product merely of Canadian law given how thoroughly that law protects the accused. And it’s not like Canada doesn’t have defamation torts — they do. Given all this, there are three reasons I can see why the Blue Jays aren’t tempering their statement about Osuna. The first is that they know something — something that makes the allegations credible enough that they don’t want to soften them. The second is that they are doing it for PR purposes. Although, if that’s true, throwing their closer under the bus is an odd move for a contending team. And third, it’s an error. That I find unlikely; even Gibbons never used the word “allegations.” And that’s troubling. It’s troubling because the Blue Jays evidently believe these allegations to be sufficiently credible that they are willing to ignore possible damage to Osuna’s reputation if they’re wrong. After all, the language “conduct associated with this incident” pretty much takes for granted that the incident happened. And that means that the allegations against Osuna are likely pretty serious. Whatever Osuna is alleged to have done — and, as I write this, we don’t know exactly what it is — it’s pretty serious. Canada, like the U.S., follows the British common law, so their assault laws are fairly similar to what you might expect in the States. And that covers such a broad range of behaviors that it’s impossible at this point to know what type of conduct we’re talking about. But as troubling as it is, there is a more notable development here. The Blue Jays are a team that is in contention and has better than a 20% chance of making the playoffs. They’re a team that is projected to win 84 games, enough to keep them in the Wild Card race all year. There’s something at stake. Despite that, the Blue Jays appear to have made a decision to presume that Osuna’s alleged victim is telling the truth. Objectively, there’s some logic to that decision: studies have shown that between 2% and 6% of rape allegations are false, which means that as many as 98% are true. False domestic-abuse allegations are equally rare. Statistically, it’s just more likely that Osuna’s accuser is telling the truth, and the Blue Jays have evidently decided to take her allegations at face value. Legally, there’s no reason they can’t. And in the court of public opinion, there are probably reasons they should. However logical Toronto’s decision, it’s one that few (if any) clubs have embraced before this moment. The Blue Jays, with this one move, appear to have taken a real, if subtle, stand on behalf of women’s safety. It’s a position which, if I might editorialize briefly, is overdue. When we discussed Sano, we talked about the punishments available under the Domestic Violence Policy. And while Sano wasn’t suspended, he also wasn’t arrested. A review of penalties for players who were arrested isn’t heartening for the Blue Jays’ on-field prospects. Aroldis Chapman got a 30-game suspension, Reyes landed a 52-game suspension, and Olivera received an 82-game suspension. Given the Jays’ precarious place in the standings and Osuna’s importance to the team — Osuna has already racked up 0.5 WAR and is sixth in MLB with nine saves for a 19-17 Toronto team — a loss of that length for Toronto could be brutal. There’s also the fact that Osuna, who plays in Canada, could have visa problems if he is, in fact, convicted; Jung Ho Kang is proof of that. This is a saga which could last long beyond the commissioner’s investigation. There is one last thing to consider. The Blue Jays rank 13th in the majors with 0.9 relief pitcher WAR, and Osuna accounts for more than half of that by himself. If the Blue Jays do, in fact, miss the playoffs, Osuna — or, more likely, Osuna’s absence — will likely be a not-insignificant factor. It’s important to remember what the Blue Jays might be giving up. It’s also worth noting what they might have gained, though. The organization’s message is distinct from those sent by other clubs faced with similar situations.