Steve Clevenger and the Precedent for Insensitive Comments

Seattle Mariners’ backup catcher Steve Clevenger is not particularly sympathetic to the Black Lives Matter movement. Rather than keep his feelings on the matter to himself, however, he decided to share them with the world on Thursday afternoon in the following tweets:

Not surprisingly, the public response to Clevenger’s comments was swift and unforgiving. Within hours, the Mariners released an official statement distancing the team from the remarks. And although Clevenger later apologized for the tweets, the Mariners nevertheless announced on Friday that the team was suspending him without pay for the remainder of the season.

On the one hand, the impact of the suspension on Clevenger will be relatively modest, as he was already on the 60-day disabled list with a broken hand, and thus was unlikely to play again for the Mariners this season. On the other hand, however, by being suspended without pay, Clevenger will forfeit the roughly $32,000 he would have earned over the season’s final 10 games.

It does not appear as though Clevenger will challenge his punishment, according to a report by Maury Brown. If Clevenger were to change his mind and file an appeal, however, then it is possible that he could get his suspension reduced by an arbitrator. Specifically, although Major League Baseball and its teams generally have the legal right to punish players in this manner, Clevenger could argue that a suspension of this length is at odds with those handed down in similar, prior cases.

As an initial matter, while Clevenger — like all Americans — has a right to freedom of speech under the First Amendment to the U.S. Constitution, that protection does not prevent the Mariners from punishing him for speaking his mind. Because the First Amendment only restricts the government from penalizing citizens for their speech, private businesses like the Mariners are generally free to regulate their employees’ speech, especially when that offensive speech occurs in a public manner (like Clevenger’s).

Instead, Clevenger’s only rights in this area are those granted to him under MLB’s collective bargaining agreement. In particular, under Article XII of the CBA, MLB or its teams have the right to punish players for “just cause” should they engage in conduct that is detrimental to the league or franchise. As I’ve previously discussed, this “just cause” standard requires that MLB or the team be able to establish that the punishment meted out in a particular case fits the offense, especially in light of the prior penalties issued for similar conduct.

In this case, given the offensiveness of Clevenger’s remarks, MLB and the Mariners can persuasively argue that allowing the comments to go unpunished would harm the standing of their business and sport in the eyes of the public. Nevertheless, if Clevenger were to file a grievance challenging his suspension under the CBA, the Mariners would have to convince an arbitrator that 10 games without pay was warranted in light of prior punishments handed down in cases where players made similarly racially insensitive public statements.

Along these lines, perhaps the most important precedent in a Clevenger appeal would be that of the case of John Rocker. In 2000, MLB suspended the former Atlanta Braves reliever for his comments in a controversial interview with Sports Illustrated in which Rocker made a series of highly offensive racist and homophobic remarks. Although MLB initially suspended Rocker 28 games for the comments, an arbitrator ultimately reduced the suspension to just 14 games on appeal.

In addition to the Rocker precedent, Clevenger could also point to two other incidents, both from 2012, involving Delmon Young and Yunel Escobar, respectively. Specifically, Young was suspended for seven games that year 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. Meanwhile, Escobar was suspended for three games that same season for displaying a homophobic slur written in Spanish on his eye black.

If Clevenger were to appeal his punishment, he could argue that the Mariners did not have just cause to suspend him for 10 days in light of the duration of these prior suspensions. An arbitrator would then have to compare Clevenger’s statements to the conduct of Rocker, Young, and Escobar to determine whether Clevenger’s punishment fit his offense.

For instance, Clevenger could argue that even though his suggestion that those involved in the protests in Charlotte should be “locked behind bars like animals” was certainly offensive, his comments did not warrant a suspension of 10 games when Rocker received only four games more than that despite making more extensive, and arguably more repugnant, remarks to Sports Illustrated.

Specifically, in response to a question about whether he’d ever considering playing for the New York Yankees or New York Mets, Rocker stated:

I would retire first. It’s the most hectic, nerve-racking city. Imagine having to take the [Number] 7 train to the ballpark, looking like you’re [riding through] Beirut next to some kid with purple hair next to some queer with AIDS right next to some dude who just got out of jail for the fourth time right next to some 20-year-old mom with four kids. It’s depressing.

The biggest thing I don’t like about New York are the foreigners. You can walk an entire block in Times Square and not hear anybody speaking English. Asians and Koreans and Vietnamese and Indians and Russians and Spanish people and everything up there. How the hell did they get in this country?

Rocker then went on to mock the driving abilities of Asian women in the interview, before also referring to an overweight black teammate as a “fat monkey.”

Similarly, Clevenger could also assert that his 10-game suspension was unwarranted in light of the significantly shorter punishments handed down to Young and Escobar for engaging in what was, arguably, roughly equivalent conduct. In the case of Escobar in particular, Clevenger could contend that the fact that Escobar only received a three-game suspension for wearing the Spanish phrase “tu eres maricon”– or “you are a faggot” — on the actual field of play suggests that 10 games is too long a punishment for Clevenger, especially since his offensive conduct occurred off of the playing field.

In light of the Rocker, Young, and Escobar punishments, it is certainly possible that an arbitrator could conclude that the Mariners went too far in suspending Clevenger for 10 games for his offensive comments. In that case, the Mariners would then owe Clevenger roughly $3,200 per game in back pay for each game his suspension was reduced. On the other hand, it’s also possible that the arbitrator would rule that a 10-game suspension for Clevenger was more than reasonable given both the offensiveness of his comments as well as the current social climate.

Even if Clevenger could potentially get his suspension reduced by a few games on appeal, though, he may nevertheless reasonably conclude that such an undertaking isn’t worth the effort considering both the negative publicity the event has already generated, as well as the potential adverse impact his comments may have already had for the future of his career. In that light, his apparent decision not to challenge the punishment is more than understandable.