Will MLB Punish Giants CEO Larry Baer Despite His Voluntary Leave of Absence?
San Francisco Giants President and CEO Larry Baer has taken an indefinite leave of absence in the wake of a video showing him jostling with his wife, Pam Baer, over possession of a cell phone. The altercation led to Pam Baer falling to the ground, though neither Pam nor Larry were injured.
Last Friday, TMZ Sports published a video of the incident. At the time of the incident, the Baers were in a public plaza in San Francisco’s Hayes Valley. The video was recorded by a witness on his or her phone. The witness’s identity has not been made public.
While standing, Larry Baer is shown trying to grab a phone from the right hand of Pam Baer, who was seated. The Baers later confirmed that the phone belonged to Larry Baer and that Pam Baer had taken possession of it during an argument over a family matter. As the two tussled over the phone, Larry Baer grabbed his wife’s right forearm and then grabbed her right hand. His movements—particularly his pulling—appeared to contribute to Pam Baer losing her balance in the chair. She then fell to ground while screaming “Oh my God!”
Both Baers have since issued multiple statements. Larry Baer described his conduct as “inappropriate” and stressed that he is “truly sorry for the pain that I have brought to my wife, children and to the organization.” Pam Baer said that she and her husband are both “embarrassed” by the incident. She also explained that she lost balance because of a foot injury that she sustained a few days earlier. Her narrative of the incident seems to place fault for her falling not on her husband—who had grabbed her arm and hand—but on her foot. Further, Pam Baer emphasizes that she and her husband “are happily married.”
According to TMZ Sports, the San Francisco Police Department is investigating the incident. As part of that investigation, witnesses, including the person who recorded the video, have been or will be interviewed.
At this time, there is no indication that Larry Baer will be charged with a crime. If he is charged, simple battery would be a plausible offense. Simple battery prohibits the willful and unlawful use of force on another person and does not require serious injury or harm. Offensive conduct that occurred without the other person’s consent and while not acting in self-defense can count. Simple battery is a misdemeanor under California law and carries a maximum of 6 months in jail. However, given that the recipient of Larry Baer’s action—Pam Baer—has attempted to downplay the incident as a mere misunderstanding and accidental falling, and given that Baer does not appear to have a criminal record, Baer, if charged and convicted, would presumably avoid a jail sentence.
For their part, the Giants have issued a statement saying that Baer has apologized to the organization and pledged to take steps to ensure he never again acts in such an “unacceptable” manner.
There is no timetable on when, or if, Major League Baseball will take action against Baer. The Giants have vowed to fully cooperate with Baseball as it investigates the matter.
Baseball’s legal authority to punish a team executive
Baseball clearly has the legal authority to discipline Baer. There are two sources of such authority. First is the Joint Domestic Violence, Sexual Assault and Child Abuse Policy, which Baseball and the MLBPA signed in 2015. The policy applies to everyone employed by either Baseball or any of the 30 clubs or their minor league affiliates.
Pursuant to the policy, commissioner Rob Manfred has the investigative power to assess “all allegations of domestic violence.” Manfred can punish a player, team executive or owner even if there are no related criminal charges, let alone a conviction or a guilty plea. It is up to the commissioner to determine whether a punishable offense has occurred. Further, the commissioner has complete discretion in determining the severity of a penalty, whether it be a suspension, fine or both.
MLB’s domestic violence policy does not explicitly define the term “domestic violence.” If MLB adopts the definition used by the U.S. Department of Justice, Baer’s act might not qualify as domestic violence. The Justice Department currently defines domestic violence as a term that “includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim …” To the extent this definition requires a felony or misdemeanor offense, Baer would not have committed domestic violence unless his conduct is considered battery or some other crime. Under the Obama Administration, the Justice Department used a more expansive definition of domestic violence that was not reliant on a felony or misdemeanor offense. To be clear, Baseball is not obligated to use any governmental definition of domestic violence. The absence of a definition likely accords Manfred full discretion in determining what counts as a domestic violence act.
As a second source of legal authority, Manfred could punish Baer under the league’s constitution. The constitution governs the relationship between teams and the league. Under Article II, Section 3, Manfred has the power to punish owners and team officials for conduct that is not “in the best interests of Baseball.” A person whose physical aggression against their significant other in a public forum could certainly qualify, particularly when the conduct adversely impacts the league’s image. Potential punishments under Article II, Section 3 include:
• Reprimand
• Suspension
• Removal/Ban
• A fine of not to exceed $500,000
• “Such other actions as the Commissioner may deem appropriate”
Baseball also has negotiated a conduct policy with the MLBPA. The policy is found under Article XII, Section B of the collective bargaining agreement. This provision expresses that players can be disciplined for conduct that “is materially detrimental or materially prejudicial to the best interests of Baseball including, but not limited to, engaging in conduct in violation of federal, state or local law.” The CBA, however, is a labor agreement between owners and players. Its terms apply to players, not team executives and staff.
Baseball’s calculus in deciding whether and how to punish Baer
While Manfred clearly can punish Baer, it’s less clear whether and how Manfred would do so. Manfred has issued lengthy suspensions under the domestic violence policy. For example, last June, Manfred suspended pitcher José Torres 100 games. Torres, who later pleaded guilty to attempted aggravated assault, had been charged with assault with a deadly weapon following an incident where he allegedly pointed a gun at his wife and injured her while kicking a door open. Manfred also suspended pitcher Roberto Osuna for 75 games in June. Osuna had been charged by Toronto police with assaulting the mother of his 3-year old son.
Manfred has also shown a willingness to suspend a player for domestic violence in the absence of a criminal charge, formal police investigation or personal injury lawsuit. Last October, Manfred suspended Chicago Cubs shortstop Addison Russell 40 games after his estranged wife claimed that he had beaten her in front of their two children. While there is no record of law enforcement investigating the claim, MLB found the allegation sufficiently credible so as to justify a suspension of nearly a quarter of the season.
Do not expect Manfred to take immediate action against Baer. Instead, the commissioner’s office will investigate the matter to the extent it can. As a private entity, MLB lacks subpoena power. Baseball cannot compel Pam Baer or other witnesses of Larry Baer’s conduct to speak about what happened or share emails or texts that might shed light. Even if such witnesses voluntarily cooperate in an MLB investigation, they would neither be speaking under oath—meaning they could lie, exaggerate or omit without legal repercussion—nor required to answer questions. Likewise, MLB has limited authority to probe whether Larry Baer has ever committed a similar act. On the other hand, Larry Baer, as an official of a team, would be obligated to comply with MLB’s investigation.
As Manfred evaluates available evidence and testimony, he’ll likely have three major considerations in mind.
— First, the fact that both Baers portray the incident as a non-injurious family squabble is relevant but not determinative. While Manfred was likely relieved to hear this type of benign account instead of a more damming one, he must still protect the league’s image with fans and sponsors. To that end, Manfred is inclined to punish conduct that damage the league’s brand. Even if the incident was truly a misunderstanding over a cell phone, the video was disturbing. A team executive grabbed his wife’s arm and, likely to some degree, caused her to fall and yell “Oh my God!” This was not normal behavior. If police had been present, Baer would have been questioned and potentially arrested.
— Second, Manfred will be mindful of precedent. He knows that if he declines to punish Baer, MLBPA might claim that Manfred is selectively enforcing the rules. As noted above, Addison Russell was neither charged with a crime nor there was a viral video of his alleged act. Yet Manfred punished Russell based on a (credible) accusation. Here, Baer is shown on video taking an aggressive and unnecessary physical action against his wife. If Manfred doesn’t punish Baer, expect that omission to surface a topic in future arbitration hearings involving player discipline. Along those lines, players who are suspended under the domestic violence policy have a collectively bargained right to appeal a disciplinary finding to a three-person arbitration panel.
— Third, Manfred knows the Giants could punish Baer under his employment contract. Manfred could rely on that punishment as consistent with the league’s interests. With player conduct matters, Article XII, Section B of the CBA notes that the commissioner can defer to clubs for player conduct discipline. That same logic could prove relevant here: if the Giants suspend Baer, without pay, Manfred could reason that Baer is being punished.
In a sense, Baer taking a leave of absence is already a form punishment. He has been removed from the team because of his misconduct. Upon closer inspection, however, the leave of absence is really not a punishment. In fact, the Giants have termed Baer’s absence as resulting from a “request” from Baer to the team’s Board of Directors that he “take personal time away” from team.
This terminology is not consistent with a punishment. It’s also unknown if Baer’s absence is paid or unpaid. A paid leave would be less like a punishment and more like a breakMoreover, as Ray Ratto wisely notes in a Deadspin story, while Baer will not be involved in the day-to-day operations of the team, it’s not clear if he will also barred from the property or if can he take calls from employees, sponsors or investors. As CEO and President, Baer is the boss (in fact, he is also one of the Giants’ owners). That dynamic invites skepticism as to how Baer’s leave of absence will be enforced. Along those lines, Ratto wonders, “If you’re the one suspending yourself, do you get to decide when the suspension is over? And who’s going to object if you do?”
SI will keep you posted on the Baer situation.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.
