LOS ANGELES, CALIFORNIA - JUNE 28: Trevor Bauer #27 of the Los Angeles Dodgers throws the first ... [+]
As Major League Baseball awaits a ruling on Trevor Bauer’s appeal of his 324-game suspension for alleged violation of the league’s domestic violence policy, the credibility of Bauer and his accusers will likely take center stage. At the same time, the manner in which the game’s new neutral arbitrator, Martin Scheinman, views the league commissioner’s discretion in choosing how long to suspend a player may also prove consequential.
Bauer was recently suspended by MLB Commissioner Robert Manfred for two full seasons at the conclusion of the league’s internal investigation of claims that Bauer assaulted multiple women during initially consensual rough sex. The Los Angeles police department investigated similar allegations against Bauer but declined to file any charges. The Los Angeles Superior Court also declined to issue a restraining order.
While the allegations made against Bauer are salacious, Bauer enjoys certain legal protections of his job that are a product of the collective-bargaining negotiations between the Major League Baseball teams and his union. In particular, every Baseball player on the 40-man roster enjoys the collectively bargained right to appeal a league suspension to a neutral, outside arbitrator, who then must determine whether the commissioner had “just cause” to issue a suspension of the given length.
The neutral arbitrator that hears Baseball disputes is selected by the league and players union based on a list provided of American Arbitration Association accredited arbitrators. Either side is free to fire the arbitrator at any time. However, an arbitrator’s decision stands even beyond the arbitrator’s termination.
Under Major League Baseball’s arbitration process, the burden technically lies with the commissioner to prove to the chosen, neutral arbitrator that the league’s suspension is “reasonably commensurate with the offense.” Thus, in the case of Bauer, Major League Baseball assumes the burden to prove that the league’s 324 game suspension is justified in light of all circumstances, including the player’s past behavioral history, and previous league suspensions of players for similar misconduct. Moreover, the suspension has to be “fair” to the player involved, and it cannot simply be implemented to deter future player misconduct.
Nevertheless, not every past Baseball arbitrator has adopted the exact same view of these burdens. On one end of the spectrum, George Nicoalu, who was Major League Baseball’s longstanding arbitrator in the late 1980s and early 1990s, placed a very high burden on Major League Baseball to defend the length of player suspensions, especially when the lengths of these suspensions were unprecedented. In overturning the league’s plans to ban pitcher Steve Howe for life in response to his seventh drug-related infraction, Nicolau notably pointed out that “deterrence, no matter how laudable an objective should not be achieved at expense of fairness."
By contrast, Frederic Horowitz, who served as Major League Baseball’s arbitrator from 2012-16, took a somewhat more favorable approach to the league commissioner. In upholding Baseball’s one-year ban of star New York Yankees infielder Alex Rodriguez for alleged repeated use of performance-enhancing substances, Horowitz allowed the league to issue more than triple the conventional fifty-game ban for performance enhancing drug use because Rodriguez had used three separate impermissible substances, over the course of three different seasons. Implicitly, Horowitz seemed to consider an importance to the suspension’s deterrent effect.
In Bauer’s case, Arbitrator Scheinman will be asked to decide whether Major League Baseball had “just cause” to suspend the pitcher for 324-games for allegedly engaging in conduct that violated the league’s domestic violence policy, even though no previous domestic violence offender — including one who even served jail time for his act — ever served more than a one-year ban. This seems to be a heavy ask from the league.
If Nicolau were still Baseball’s neutral arbitrator, he likely, at a minimum, would have reduced Bauer’s suspension—finding the time period of ban imposed by the league to have been driven more by “deterrence” than precedent. In Horowitz’s case, a ruling may have been somewhat less certain.
Meanwhile, for Scheinman, this will mark his first opportunity to interpret the burden placed on the Baseball commissioner when issuing player suspensions. Beyond just attempting to resolve the factual dispute in this matter, Scheinman’s interpretation of the “just cause” clause in the league collective bargaining agreement prove key to determining when, if at all, Bauer is back in uniform for a Major League Baseball team.
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Marc Edelman (Marc@MarcEdelman.com) is a Professor of Law at Baruch College’s Zicklin School of Business, Sports Ethics Director of the Robert Zicklin Center on Corporate Integrity, and the founder of Edelman Law. He is the author of “Are Commissioner Suspensions Really any Different from Illegal Group Boycotts?”
