The Weak Spot in the League’s Domestic-Violence Policy

The end of the Cubs’ season came earlier than expected, with the North Siders finding themselves unceremoniously dispatched from the playoffs by the Rockies in the Wild Card Game earlier this week. Addison Russell, once regarded as vital cog in an emerging Cubs dynasty, was absent from the roster for that game, confined instead to administrative leave. The next day, Major League Baseball announced that Russell would be suspended for 40 games, including the 12 games already spent on administrative leave, to be enforced at the beginning of the 2019 season. In essence, Russell will miss all of April.

Word is already circling that the shortstop has played his last game with Chicago. Russell, for his part, agreed not to appeal. “After gaining a full understanding of the situation I have concluded it’s in the best interest of my family to accept MLB’s proposed resolution of this matter. I wish my ex-wife well and hope we can live in peace for the benefit of our child.” Part of that resolution — the one marked by the phrase “agreed not to appeal,” which appears in Manfred’s statement above — is something I’ve addressed before when discussing Roberto Osuna’s suspension.

We learn here not that [Roberto] Osuna decided not to appeal but rather that he agreed not to appeal. Osuna, in other words, effectively settled his case with MLB, agreeing to a shorter suspension in exchange for not appealing. This sort of resolution isn’t necessarily dissimilar to a plea bargain or civil settlement, both of which have their utility. It’s an open question, however, whether baseball’s accused domestic abusers ought to have a say in their own discipline, particularly when that discipline is being enforced by their employer. And Osuna’s case isn’t an isolated incident; rather, it’s standard policy. The same thing happened with Aroldis Chapman, for example.

FanGraphs’ own Jeff Sullivan arrived at a logical conclusion following the announcement of Russell’s punishment:

On one level, Sullivan’s point makes sense: Osuna received a harsher sentence than Russell, ergo Osuna must have done something worse. Because we have a firsthand account detailing Melisa Reidy-Russell’s allegations against her ex-husband, we then also (hypothetically) have some kind of baseline for the sort of penalty his disturbing behavior warrants by the terms of the league’s domestic-violence policy. The Commissioner determined that Russell violated the policy, just as he determined Osuna violated the policy. Presumably, those determinations were supported by evidence; otherwise, the players would never have agreed to not appeal the discipline.

But that leads to another problem, one to which Michael Baumann alluded recently at The Ringer:

The details of the suspension aren’t the important part of this case. In fact, this process is so common that it’s taken on a tragic roteness. The 40-game ban — which is retroactive to the start of Russell’s time on administrative leave, September 21 — will invite comments about how MLB punishes first-time PED violations more harshly than players suspended under its domestic violence policy. It also raises questions about how Russell’s case is different from that of Astros closer Roberto Osuna, who earned a 75-game suspension — does MLB believe that there’s some sort of graduated scale of badness for intimate partner violence?

Among trial lawyers, jury verdicts are often compared to “sausage-making.” Just as with sausage, we often don’t know how the verdicts get made. And there’s an increasing idea that we don’t want to know. It’s what is known in the law (as in many other fields) as a “black box“: information, evidence, and jury instructions flow in, and a verdict flows out. What happens in between is the subject of speculation.

Increasingly, that seems to be how MLB’s domestic-violence policy is working. It would seem that there are three potential ways in which Manfred and company arrived at 40 days as the length of Russell’s suspension. One possibility brings us back to Baumann’s question: that there is some prearranged framework — sort of a “sentencing guideline” — for different severities of domestic abuse. I imagine a full explanation of why that kind of framework would be problematic is unnecessary. The policy itself, for what it’s worth, states only that “[t]he Commissioner may discipline a Player who commits a Covered Act for just cause[,]” and later adds this:

This Policy arises in part from the increased recognition and understanding of the seriousness and harm resulting from Domestic Violence, Sexual Assault and Child Abuse. As a result, precedent and past practice under the Basic Agreement regarding the discipline of Players for Covered Acts are not relevant in assessing discipline under this Policy. The Arbitration Panel may consider precedent from past cases not involving Covered Acts. In evaluating the just cause of the level of discipline imposed under the Policy, the Arbitration Panel may consider aggravating and mitigating factors where relevant and appropriate.

In other words, previous suspensions for actions that weren’t domestic violence are precedential for the sake of punishment. Precedent is typically helpful. In this case, though, how one compares the use of a performance-enhancing drug, for example, to an incident of domestic abuse isn’t readily apparent. And what might constitute an “aggravating” or “mitigating” circumstance isn’t readily apparent, either. So it’s doubtful that a sliding scale exists. The second possibility is that Manfred is essentially making a value judgment each time, throwing darts at the proverbial wall. I rather doubt it, given the language of the agreement.

So we come full circle. The only remaining possibility, it would appear — particularly given the players’ agreements not to appeal — is that the guilty parties themselves are essentially being given a say in the length of their suspensions. By extension, that would appear to mean that a player’s discipline depends less on the severity of the abuse and more on the skill of his representation. It also means that the wealthier, more powerful players would have more ability to shape their own discipline by dint of having secured better, more expensive representation. And, frankly, that’s horrifying. The idea that richer players can buy shorter suspensions, or that players can guide their own discipline, should be anathema to the goals of the policy.

But this process has other consequences, too. There are the trade incentives, which we’ve discussed before. Players who can negotiate their own discipline can do so to keep their trade value high. And beyond that, agreed discipline means that parties close to the issue are incentivized to obfuscate until such time as negotiations are complete. Consider, for example, the comments by Cubs president Theo Epstein after Russell’s suspension was announced:

Epstein said the team now has “an obligation to find out as much as we can about what happened,” then reach out to Russell and his ex-wife, Melisa Reidy, whose emotional blog post less than three weeks ago relaunched an investigation that had been dormant for more than a year.

“He accepted this discipline, so I want to talk to him about what that means and find out more,” Epstein said. “And the victim first and foremost deserves our outreach and support. That will be forthcoming very quickly.

“Addy, in my opinion, also should not just be completely dismissed. He deserves our support and our help going forward, too.”

Compare that to what Epstein said before the suspension:

“I would say that I know him in a baseball context,” Epstein said. “I think one thing that we’ve learned in society as we try to collectively wrestle with… how to appropriately handle accusations like this is that it’s important to step back and realize that if you know someone in one context, you don’t necessarily know them fully.

“And, that said, he’s a member of this organization who has been an active member of this club. His dealings with us have been certainly on the up-and-up. And I can’t speculate as to things that occur beyond this, except to say that we certainly are concerned about the accusations.”

What Epstein is saying is that his Cubs didn’t have an obligation to investigate what happened until after Russell’s negotiated discipline became effective. While the CBA says a team can’t discipline a player under the domestic-violence policy unless the Commissioner declines to do so, there is notably no prohibition on investigating allegations. (This is not intended to target the Cubs; they’re merely the latest example.)

Earlier this year, I questioned whether MLB’s domestic-violence policy was effectively designed. Since then, we’ve seen more agreed suspensions, but precious little in terms of anything else. And MLB’s evident attempts to avoid an appeal over a domestic-violence suspension is a curious place for the league to cave. We’ve seen the league risk confrontations over shoe designsmound visits, revenue-sharing, and service-time manipulation. But on this issue, the league won’t risk an appeal. It’s an interesting place where the MLBPA seems to have its greatest leverage in defending players accused of domestic abuse.

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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3 years ago

Maybe that’s because the MLB has no actual jurisdiction for conducting a criminal due process proceeding and subsequent punishment/disicipline?

MLB has its hands tied on multiple fronts, including the players’ union and what the CBA allows. There’s no criminal convictions involved in any of these cases, so what can you honestly expect? Not like the CBA allows MLB or individual teams to levy very lengthy bans or fire or opt out of player contracts afterall…

You already provided one possible reason for these “agreed to not appeal” deals. They’re basically plea bargains. And even in criminal justice system, there are reasons for plea bargains beyond the actual severity of the crimes, eg. what’s actually provable vs what’s merely suspected.

IF, for instance, Manfred/MLB concluded that Russell’s case is harder to prove (by whatever standard being used) than Osuna’s, then it’s understandable that a plea bargain process would allow Russell to receive less punishment/discipline than Osuna — remember also that if players appeal, things can get uglier than they already are. Just the unfortunate reality of things regardless of how we might feel about it.

Can the process be improved for better justice? Perhaps so… but we also have to remember this is not the actual criminal justice system… and MLB can only be expected to do so much all things considered…