The Mound-Visit Rule Might Have an Enforcement Problem

Major League Baseball’s new pace-of-play rules, including the new mound-visit limits, have already been covered at this site. Accordingly, this post won’t address the rules themselves. Rather, I’d like to examine what happens when a player breaks those rules — or, possibly, what won’t happen when a player breaks them.

Catchers Willson Contreras and Martin Maldonado have already said they won’t follow the new mound-visit rule. Specifically, they said they are willing to pay fines rather than comply if the game is on the line.

As a lawyer, my entire job is to research, apply, and interpret rules of one sort or other. So when I hear that two players are going to willingly not follow rules, it piques my interest. And that got me wondering… is a fine all they’d face if they did, as they said, ignore the rule and go out for that seventh visit?

The first issue is whether they’d even be allowed to go out a seventh time. Joe Torre thinks (and reports confirm) that umpires just won’t even permit the seventh visit at all. But as a practical matter, how will the umpire prevent it, exactly? It doesn’t seem that the umpire will be able to throw himself bodily in the path of every wayward catcher. So there have to be some consequences for violators. And this is where things get weird.

According to a summary of the new rule released by MLB, the new mound-visit limits include language that “[p]layers who consistently or flagrantly violate the [rule] will be subject to progressive discipline for just cause by the Office of the Commissioner pursuant to Article XI(C) of the Basic Agreement.” But the official Rules — 5.10(l) and 5.10(m) — carry no mention of discipline or penalty for violators at all. Usually, the in-game penalty is included with the Rule: Rule 5.10(k), for example. But not here. The only thing an umpire is empowered to do is order the manager removed from the game per the comments to Rule 5.10(l) — and, even then, only after a warning.

And if we go by the summary of the Rule instead of the Rule itself, we have another problem: Article XI(C) isn’t actually about the Commissioner’s power to discipline.  Instead, Article XI(C) discusses the procedure for grievances and complaints by the MLBPA in response to certain disciplinary actions by the Commissioner. The Commissioner’s power to discipline is in Article XII. But Article XI(C) is all that is referenced as the basis for discipline in the official Summary released by MLB.

The weirder problem is that the reference to Article XI(C) is oddly specific. Perhaps the league intended to cite XII(C), which discusses notice to players of violations. But discipline for just cause, which is what the summary mentions, is covered in Article XII(A). I wanted to see if Article XI(C) had been referenced as a source of disciplinary power before, so I went back and checked last year’s rules.  But Article XI(C) makes no appearance in the 2017 Rules whatsoever. And Attachment 40 to the CBA states flatly that “[a]ll discipline… by a Club or the Commissioner must be for just cause in accordance with Article XII of the Basic Agreement.” (Emphasis mine.)

I wanted to make sure I wasn’t missing something, so I went back and checked the last CBA, too. That one also has grievances in Section XI and Discipline in Section XII. Most of the language from Sections XI and XII was carried over into the new CBA. I also wanted to see if I could find any discipline issued by MLB using Article XI(C) as a basis. So I went back and looked at suspension announcements from MLB going back to Alex Rodriguez in 2014. I couldn’t find a single one which cited Article XI(C) as a basis for the Commissioner’s disciplinary power. So I dug deeper. There was actually a law review article written back in 2014 noting that “Article XI, section C [of the CBA] details the procedures for suspensions involving conduct on the playing field.” That sounds promising! But other law review articles read Article XI as limited to grievance procedures. (Other sports’ CBAs, such as the NBA’s, are far more clear than MLB in what discipline is permitted and when.) So Articles XI and XII are not what you might call models of clarity.

The Commissioner also has power to discipline players under Article II of the MLB Constitution, which states that “punitive action by the Commissioner for each offense may include any one or more of the following: (a) a reprimand;… (d) temporary or permanent ineligibility of a player; (e) a fine… in an amount consistent with the then-current Basic Agreement with the Major League Baseball Players Association, in the case of a player;… and (g) such other actions as the Commissioner may deem appropriate.” But, again… not mentioned in the summary or the Rule.

Now, there is no doubt that there is at least some implied authority by the Commissioner to discipline players in Article XI. The famous “integrity of the game” clause is in Article XI(A)(1)(b), for example. And Article XI(C) details the grievance procedure in the case of suspensions or fines of various severity for conduct on the field, which necessarily means that the Commissioner must have authority to issue those fines and suspensions in the first place (though he’s given that authority expressly in Article XII). And perhaps that’s what the summary meant — that they would be issued under the Commissioner’s implied authority. But why would the summary cite the Commissioner’s implied authority to suspend or fine someone when he’s given the express authority to do so a few pages later? (As an interesting aside… Article XI in the NFL CBA is where the NFL commissioner gets his disciplinary authority.) This is, in other words, sloppy drafting.

We’ve seen in cases like the litigation over suspensions of Tom Brady and Adrian Peterson in the NFL (cases called, respectively, NFL Management Council v. NFL Players Ass’n and NFL Players Ass’n v. NFL), that courts follow a rule of contract construction where “the specific governs the general.” The Rules are part of the contract between the players and MLB, and, technically speaking, the specific reference to Article XI(C) might prevail over the general power of the Commissioner to discipline. And that means there is a potentially problematic precedent being set here. Discipline has to follow the agreed-upon rules or it really can be overturned on appeal. If you doubt me, remember that Ryan Braun won an appeal of a 50-game suspension on a legal technicality.

This might be just the lawyer in me nitpicking. It’s possible that nothing comes of it at all. And the Commissioner has broad power to discipline players for “just cause” under Article XII(a), anyway. That’s in what is called the “law of the shop,” which is just a slightly ornate way of denoting the rules and customs followed by a particular workplace. Nobody doubts that the Commissioner does have authority to discipline players. But… shouldn’t players know what penalties await them for violations of this rule?

This is all the more true when we get back to Contreras and Maldonado. Is a fine really all they get if they really do just ignore the mound-visit rule?

Actually, the answer is no — and that’s why getting the disciplinary precedents right is important. Article XII provides two main discipline options for “just cause”: fines and suspensions. Progressive discipline basically means that you start with a smaller punishment and go bigger with each new violation. “Just cause” is basically legalease for a “a really good reason.” (There are exceptions to these rules in the CBA, such as for domestic violence, but that’s an article for another time.) So let’s say Contreras decided to go out for that seventh mound visit. Aside from really annoying the umpire, there could theoretically be consequences for him beyond just fines. There’s no reason, basically, that MLB couldn’t decide to suspend Contreras as some point for repeated violations, so long as MLB complied with the progressive standard.

There’s really no good reason for MLB to play hide-the-ball here, and I highly doubt that anything deliberately nefarious is going on. But at the very least, it seems that the Rule and Summary, as drafted, are potentially misinforming players about what penalties they would face for that seventh mound visit. And that should be corrected before the season starts. Otherwise, Contreras’s only way to avoid discipline might be to just ask Robinson Cano what the next pitch should be.