The Legal Implications of Jose Reyes’ Indefinite Suspension by Nathaniel Grow February 24, 2016 When news reports broke in November that Jose Reyes had been arrested in Hawaii for an alleged incident of domestic violence, many assumed that he would be the first test case under Major League Baseball’s new domestic violence policy. As I noted at the time the agreement was announced last August, both MLB and the Major League Baseball Players Association have agreed to a new set of rules to govern cases in which a player has been accused of domestic violence, sexual assault, or child abuse. Among the provisions in the new policy was one giving Commissioner Manfred the power to place any player accused of domestic violence on paid administrative leave for up to seven days. This provision was intended to give the league sufficient time to investigate the alleged incident before deciding on an appropriate level of punishment, while at the same time preventing a player involved in a domestic incident from appearing on the playing field. Given the seven-day time limit of any such interim suspension, MLB’s announcement on Tuesday that the league was indefinitely placing Reyes on paid leave until after his pending criminal proceedings in Hawaii have been resolved initially took some by surprise. Indeed, considering that Reyes’s criminal trial in Hawaii isn’t scheduled to begin until April 4th, the leave that MLB announced on Tuesday will undoubtedly extend well beyond the time limit seemingly authorized under the new domestic violence policy. In reality, however, although many observers – including me – missed this detail when MLB first announced its new domestic violence policy in August, the new policy agreed to by the league and union did in fact include an additional provision that applies to Reyes’ case. As MLB announced on Tuesday, Commissioner Manfred indefinitely suspended Reyes with pay under Section III.C.2 of the league’s domestic violence policy. That provision gives Commissioner Manfred the authority to indefinitely suspend a player pending the resolution of any legal proceedings relating to the alleged domestic incident. So because Reyes’s criminal case in Hawaii remains on-going, MLB has the power to suspend him with pay until his legal case has been resolved. Although many overlooked it at the time, the league’s initial announcement of the new policy from back in August did suggest such a possibility, stating that “under certain circumstances” MLB “may suspend the player with pay until legal proceedings are completed (at which point the paid suspension may be converted to an unpaid suspension).” To date, the union and league have not yet publicly released the final version of the domestic violence policy, but instead have only provided a summary of the document. However, I have been able to confirm that Section III.C.2 of the agreement provides as follows: In certain cases, the Commissioner may decide that he is not in a position to impose discipline until the resolution of a criminal or legal proceeding, but that allowing the Player to play during the pendency of the criminal or legal proceeding would result in substantial and irreparable harm to either the Club or Major League Baseball. In such exceptional cases, the Commissioner may suspend the Player with pay pending resolution of the criminal or legal proceeding (or until the Commissioner determines that he has just cause to impose an unpaid, disciplinary suspension). So Commissioner Manfred has obviously determined that Reyes’s case presents sufficiently “exceptional” circumstances warranting an indefinite, interim suspension. The MLBPA, for its part, does not necessarily appear to oppose this characterization, as the union released a statement on Tuesday suggesting that it would not immediately appeal Reyes’ suspension, but may do so in the future if his situation “is not resolved in a timely fashion.” Section III.C.2 goes on to provide that if a player is initially suspended indefinitely pending the completion of his criminal proceedings, only to then ultimately be suspended by the league without pay for the incident, he may be credited with “time served” from his initial, interim suspension. In other words, so long as the player pays back any salary he receives during the initial suspension, the time that he sits out during the interim period will count towards the unpaid suspension that MLB ultimately levies against him. On the one hand, giving MLB the power to delay any decision in a domestic violence case until after the underlying criminal proceedings have been resolved makes perfect sense. Because the police investigating Reyes in Hawaii are the closest to the scene, they undoubtedly have access to evidence not currently available to MLB’s investigators. So it’s understandable that MLB would want to wait to learn all of the details regarding an incident before settling on a final punishment. From the player’s perspective, though, the possibility of being placed on indefinite leave could potentially impact his strategy in the accompanying legal proceedings in significant ways. If MLB does elect to temporarily suspend a player, then the longer that the player allows his court proceedings to drag out, the longer he will be away from the game — regardless of his guilt or innocence. And depending upon how long it takes to reach a final resolution in the legal proceedings, then the player may still be facing an additional, unpaid suspension under the domestic violence policy as well. While it is true that players will continue to receive pay during any initial, interim suspension, spending any significant period of time away from the game will inevitably make it harder for the player to return to the field at a peak level of performance. In Reyes’s case, this issue is magnified by the fact that he will presumably now miss all of spring training, and as a result will likely need to spend at least a few additional weeks getting game-ready after any subsequent, unpaid suspension is served, before returning to the majors. As a result, the existence of Section III.C.2 could motivate some players to resolve any criminal proceedings arising out of their alleged domestic violence incident more quickly than they otherwise would, so as to minimize the amount of time they are away from the playing field. Along these lines, it is in some ways surprising that Reyes hasn’t yet reached some form of plea bargain with the prosecutors in Hawaii. At the same time, however, because the potential punishment for domestic violence varies by state, differences in state law may affect a player’s amenability to pleading guilty to a crime of domestic violence. In Hawaii, for example, a first offense of the crime of “Abuse of family or household members” carries a mandatory minimum jail sentence of two days. So even if it might be in Reyes’ best interest from a baseball perspective to resolve the criminal proceedings as quickly as possible – so that he can begin serving his eventual suspension and return to the field as soon as possible – there may nevertheless be other reasons why his attorneys would advise him to take his case to trial. As a result, any player facing a pending domestic violence charge may very well find himself being pulled in two directions, with his baseball advisers (or, potentially, his team) encouraging him to resolve the criminal case as quickly as possible, while his attorneys advise him to let the legal process run its course. Of course, any player worried about facing such a predicament can avoid the issue almost entirely by refraining from acts of domestic violence in the first place. But in a case where a player truly believes that he is innocent of the charges, the possibility of an interim suspension under Section III.C.2 may place some pressure on the player to reach a deal with prosecutors that he otherwise would not have taken. So from a due process perspective, the threat of an indefinite suspension could deter a falsely accused player from fully defending himself in court. As a result, the possibility that players may now face indefinite, preliminary suspensions upon being criminally charged with an act of domestic violence certainly makes MLB’s new domestic violence agreement an even more substantial change in policy than many had previously understood.