On Friday afternoon, Major League Baseball announced that Los Angeles Dodgers pitcher Trevor Bauer would be suspended for 324 games for allegedly assaulting multiple women during initially consensual sexual intercourse, even though the star pitcher has not been charged with any criminal wrongdoing. Now, Major League Baseball faces an uphill battle in upholding the star pitcher’s suspension.
When a professional athlete is suspended under a league’s personal conduct policy, the accused player typically has been alleged to have engaged in acts of severe moral depravity — whether it be Michael Vick’s dogfighting activities, Ray Rice’s elevator assault of his fiancée, or any of the several past Major League Baseball players accused of domestic violence. In these cases, the allegations are never pretty, and public sentiment is often strongly against the player.
However, as a matter of legal process, not every time an athlete allegedly engages in a morally depraved behavior is the league’s suspension likely to be upheld under the league collective bargaining agreement. Sometimes the underlying allegations of wrongdoing cannot be proven as true. Other times, the league suspension does not withstand legal scrutiny based on length.
In Major League Baseball, every 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 league commissioner had “just cause” to issue a suspension of the given length. This right for “just cause” review is very different from the collectively bargained system in the National Football League, where the internal right of appeal is simply the right of appeal back to the commissioner himself. Indeed, in Baseball, the appeal is a far cry from a rubber stamp.
Under Baseball’s “just cause” system of arbitration, the burden lies with the league’s commissioner to provide to a neutral arbitrator that his issued suspension is “reasonably commensurate with the offense.” Thus, presuming that Bauer appeals his 324-game suspension, Major League Baseball has the burden to prove that the length of Bauer’s 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.
Without minimizing the gravity of the allegations made against Bauer, it will be an uphill battle for Major League Baseball to show that its two-year ban of the Dodgers pitcher is reasonably commensurate with his offense in light of the league’s substantially lighter past punishments of current and alleged domestic violence offenders — many who actually faced criminal charges for their wrongdoing, and one who even served jail time. Indeed, Major League Baseball’s longest previous suspension of a player for domestic violence came in March 2021 when the league handed down a one-year ban to free agent pitcher Sam Dyson, who “accepted” the penalty without appeal. Dyson had been accused by his girlfriend of a long pattern of verbal, emotional and physical abuse, even though he — like Bauer — was never charged with any crime.
Prior to Dyson, Major League Baseball’s longest player suspension for alleged domestic violence was 100-games, which it handed to San Diego Padres reliever Jose Torres, after he was charged criminally with assault with a deadly weapon for “allegedly brandish[ing] a semiautomatic handgun at his wife.” Meanwhile, in 2016, Major League Baseball only suspended Atlanta Braves infielder Hector Olivera for only 82 games, despite Olivera ultimately serving a prison sentence for misdemeanor assault and battery.
At present, Bauer — unlike Torres or Olivera — has not been charged criminally with any misconduct, and he is not presently under criminal investigation. There are also no known orders of protection or restraining orders currently in place against him. And, Bauer has presented to the public at least some evidence that the purported victims of his actions voluntarily requested him to engage in some form of rough sex, even if not the exact acts that Bauer allegedly perpetrated. Thus, unless Major League Baseball has access to substantial information that is not otherwise in the public domain, it seems hard to justify for reasons for why Bauer has been punished so much more severely than Dyson, Torres or Olivera — all other past domestic violence policy offenders where the alleged wrongdoing was, in many ways, far less complicated.
Of course, none of these potential defenses of Bauer in terms of the length of his suspension are to argue that Bauer will or should be back in a Major League Baseball uniform anytime in the near future — just that a 324-game suspension seems like a stretch under the league’s collective bargaining agreement. Moreover, even if a neutral arbitrator were to reduce or overturn Bauer’s suspension, the Dodgers are still within their rights to cut Bauer from their roster. The only difference is that, without a league suspension, the Dodgers would still need to pay at least some of Bauer’s salary.
It is still soon to predict the outcome of Bauer’s seemingly inevitable appeal of his two-year suspension. But, based on the information that is presently in the public domain, it seems reasonably likely that an arbitrator will, at a minimum, reduce the length of Bauer’s suspension. Then, it will be left to the Dodgers to determine if they wish to send their high-salaried pitcher back to the mound in their uniform or simply cut him from their roster and pay whatever amount of his salary still falls under their legal obligation.
Whatever the case, Trevor Bauer’s case is not likely to go away gently into the night. By choosing to suspend the pitcher for two full seasons, a player appeal seems nearly inevitable. And in choosing the suspension length of double the longest previously given in league history, Major League Baseball incurs a more than reasonable chance that at least part of the player’s suspension will ultimately be overturned.
Marc Edelmann (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?”