- Odubel Herrera was arrested Monday night for domestic violence and was placed on administrative leave on Tuesday. MLB will conduct its own investigation into the allegations and determined whether to discipline Herrera. Here's how the situation could unfold.
Philadelphia Phillies centerfielder Odubel Herrera faces an assault charge for a domestic violence incident in Atlantic City’s Golden Nugget Hotel and Casino. Herrera, 27, is accused of injuring a woman who is described as his 20-year-old girlfriend. The woman’s name has been redacted by law enforcement. The alleged altercation occurred within a hotel guest room and shortly before 8:30 pm on Monday night. Although the woman declined medical treatment, the Atlantic City Police Department indicates that she suffered visible hand scratches to her arms and an unspecified injury to her neck.
Herrera placed on administrative leave as he enters the court system
MLB and the MLBPA have agreed to a joint domestic violence, sexual assault and child abuse policy. The policy makes clear that MLB commissioner Rob Manfred can punish a player for a single incident of abusive behavior in any intimate relationship.
Pursuant the policy’s protocols, the commissioner’s office has placed Herrera on administrative leave. A player can initially be placed on leave for up to seven days, a term that the commissioner’s office can extend for an additional seven days. Also, at the request of the commissioner’s office and with the MLBPA’s consent, this administrative leave period can extend further beyond those 14 days.
Being placed on leave is not technically considered a disciplinary action, nor does it constitute a finding of wrongdoing. To that point, Herrera, who is in the third year of a $30.5 million contract, will continue to be paid and accrue MLB service time while on leave. However, he will mostly be separated from his teammates as well as club officials. Along those lines, Herrera will be ineligible to participate in any Phillies games or public practices and workouts, though with the commissioner’s office consent he can join non-public practices and workouts.
While Herrera is sidelined, the commissioner’s office will monitor legal developments involving Herrera’s case and conduct its own investigation. Herrera has been charged with simple assault, a low-level misdemeanor that refers to either knowingly causing another person injury or placing them in fear of bodily harm. Under New Jersey law, the charge carries a maximum incarceration of six months in jail. This offense, however, is typically resolved with some combination of a suspended sentence, probation, community service or a fine. In other words, even if Herrera is convicted or reaches a plea deal, he would likely not face any jail time. He’s scheduled to appear in court on June 17.
Unclear if the alleged victim is cooperating with law enforcement
At this time, it is unknown if the woman described as Herrera’s girlfriend is cooperating with law enforcement, who might ask her to testify against Herrera.
Along those lines, the manner in which the police were alerted about the incident has not yet been clarified. It’s not known if Herrera’s girlfriend or another person altered the police. Since the altercation occurred in a hotel room, there is a possibility that people occupying adjacent rooms or people standing in the hallway might have alerted hotel staff.
If Herrera’s girlfriend is unwilling to testify against Herrera, the criminal case against him would be made much more difficult. This is particularly true given that hotel surveillance cameras are normally not found within guest rooms.
Herrera must cooperate with MLB investigators, but other witnesses do not
Meanwhile, the league will separately investigate the circumstances of the altercation. This means MLB investigators, with support from the Phillies, will likely request to speak with both Herrera and his girlfriend, as well as with law enforcement and hotel staff. To the extent there is available video of Herrera and his girlfriend in the hotel’s public areas during their stay, the league would be interested in reviewing the recordings for any signs of distress.
Matt Klentak said Odúbel Herrera apologized in a brief phone conversation. Klentak said the Phillies worked with MLB to have Herrera removed from All-Star balloting that began today.— Matt Gelb (@MattGelb) May 28, 2019
Herrera, who is bound by both his employment contract with the Phillies and by labor obligations bargained by the MLBPA, will need to cooperate with MLB investigators. Manfred could construe any failure on Herrera’s part to cooperate as a factor against him.
In sharp contrast, Herrera’s girlfriend is under no legal or contractual obligation to comply with any interview request by MLB. Similarly, MLB can’t compel the hotel to provide relevant surveillance video or offer witness statements. As a private entity, MLB lacks subpoena power. It is instead reliant on the voluntarily cooperation of those from whom the league seeks information. While the Golden Nugget Hotel and Casino will no doubt comply with any court orders to turn over information, the hotel will probably weigh privacy considerations of guests and staff before complying with any MLB requests.
Manfred controls the timing of the investigation
Manfred need not wait for the legal process to play out to determine if Herrera ought to face MLB discipline. Under the joint policy, Manfred has the discretion to issue a punishment at the conclusion of MLB’s investigation—whether that conclusion arrives before or after the criminal prosecution ends.
That said, Manfred is an attorney and is likely sensitive to ensuring a fair process. The commissioner knows that if MLB finds Herrera at fault before Herrera’s legal process plays out, there is the risk that such a finding could complicate any plea deal negotiations between Herrera’s attorneys and prosecutors. With that in mind, Manfred has the right to defer any discipline of Herrera pending resolution of Herrera’s criminal case.
Still, Herrera need not be found guilty of a crime nor accept a guilty plea in order for Manfred to suspend him without pay. Manfred only needs to find just cause for punishment. There is precedent to consider. Last year Manfred suspended Chicago Cubs shortstop Addison Russell for 40 games under the domestic violence policy. This occurred even though Russell was not charged with a crime, sued or subject to any known police investigation. Russell’s ex-wife, Melisa Reidy, said in a blog post that Russell had assaulted her in front of their young children, allegations that Manfred concluded warranted suspension.
The Phillies will not be able to void Herrera’s contract, but they might try to buy him out
For the immediate future, the Phillies will defer to the legal process. At the same time, team officials and MLB investigators will probe the incident. The Phillies issued a statement on Tuesday stressing that it regards any domestic violence accusation seriously and that it supports the joint policy on domestic violence. Also, Phillies manager Gabe Kapler told NBC Philadelphia’s Jim Salisbury that while he couldn’t comment on any incident details, he found the situation “deeply disturbing,” adding “It's not something you want to be dealing with—I'm personally not feeling great about it right now."
Particularly if a court, MLB or the Phillies conclude that Herrera mistreated his girlfriend, Phillies general manager Matt Klentak could explore ways to cut ties with Herrera’s contract. As mentioned above, Herrera is in the third year of 5-year, $30.5 million deal. Per Spotrac, the Phillies are paying Herrera $5 million in the 2019 season and owe him salaries of $7 million and $10 million, respectively, in the 2020 and 2021 seasons. The Phillies also hold a pair of options to extend the contract into the 2022 season ($11.5 million) and 2023 season ($12.5 million) or decline those options and pay Herrera an additional $2.5 million.
Herrera’s contract is not publicly available, but it must conform to MLB’s Uniform Player Contract (“UPC”). The UPC is structured to ensure that MLB contracts are guaranteed. Further, the joint policy makes clear that the decision to punish a player is within the hands of the MLB commissioner and that a suspension is the appropriate sanction. The policy notes that the commissioner could “transfer” this authority to the club, which could in turn suspend the player. However, the policy does not contemplate a team attempting to void a player’s contract as a possible form of club discipline.
It’s also worth noting that the UPC contains very limiting language on clubs’ capacities to void player contracts. I discussed some of that language in a recent Sports Illustrated article on Yoenis Cespedes, who suffered a significant injury to his ankle while at home. Players who are injured in certain off-field activities can imperil the guarantees of their contracts—with the New York Yankees voiding Aaron Boone’s contract in 2004 after he tore the anterior cruciate ligament in his left knee.
With Herrera, however, the UPC likely does not assist the Phillies. In theory, the team could focus on Paragraph 7(a), which instructs that a club can, after requesting and obtaining waivers of the contract from all other MLB clubs, terminate a player’s contract if he “fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship.” On one hand, a finding that Herrera battered another person would constitute a violation of “good citizenship” under any sensible understanding of that expression. On the other hand, the joint policy doesn’t permit a team using such language to void a contract pursuant to a domestic violence incident.
It is “premature to speculate” if Odubel Herrera will play again for the Phillies, general manager Matt Klentak said. The Phillies learned of the arrest this morning when the Atlantic City PD called the team.— Matt Breen (@matt_breen) May 28, 2019
Also, MLB clubs have historically struggled over the years to terminate player contracts—even when players engage in illegal acts. This dynamic partly reflects the importance of neutral arbitration in contract disputes between players and teams. A player whose contract has been voided by a team can, through the MLBPA, file a grievance. A neutral arbitrator would then preside over the grievance. Pitcher LaMarr Hoyt exercised this power in 1987 after the San Diego Padres had attempted to void his contract. Hoyt had been incarcerated on a drug possession offense. Despite Hoyt committing a criminal offense, a neutral arbitrator refused to allow the Padres to void his contract.
MLB teams have enjoyed more success in negotiating reduced payment obligations and contract buyouts with players who encounter legal controversies. Nine years ago, the Mets reportedly negotiated a reduction in contractual guarantees owed to pitcher Francisco Rodriguez after he was charged with assault. In 2005, the Baltimore Orioles and Colorado Rockies successfully bargained buyouts of the contracts for pitchers Sidney Ponson and Denny Neagle after the two ran into legal problems. The Orioles and Rockies, however, agreed to pay out substantial amounts of those contracts—meaning the players walked away with most of the money owed to them.
It’s possible the Phillies could attempt to cut ties with Herrera, who thus far has struggled at the plate in the 2019 season. However, the team likely would need to pay him most, if not nearly all, of the remainder of his salary in order to go away.
One unknown variable is whether Herrera’s contract contains an applicable salary rider. Many long-term MLB player contracts contain “conversion to non-guaranteed contract” riders. These riders permit teams to convert guaranteed salaries into non-guaranteed salaries should the player engage in specified types of misbehavior that are not covered by the UPC. It is possible that Herrera’s contract contains such a rider and that it is relevant to the incident.
Unlikely that Herrera faces significant immigration issues as a result of charge
Herrera was born and raised in Venezuela. He has played in the U.S. since the Texas Rangers signed him as an international free agent in 2008. It’s unclear if Herrera resides in the U.S. as a citizen, permanent resident (through a green card) or holder of a work visa (which would allow him to travel in the U.S. for limited periods of time).
If Herrera were in the U.S. on a green card or a work visa, he would be subject to removal proceedings at the behest of the U.S. Department of Homeland Security. DHS can seek removal when a permanent resident or person admitted to the U.S. through a visa is convicted of a violent felony; DHS can also seek to have that person declared inadmissible for future re-entry should he or she leave the country.
Herrera, however, does not face a felony charge. As noted above, he has been charged with a misdemeanor offense. It is also a charge that will likely be resolved without him being sent to jail.
Separately, Herrera could encounter immigration complications if he needed to enter Canada and then re-enter the U.S. before his criminal case is resolved. The Phillies, however, will not play the Toronto Blue Jays in 2019 unless they meet in the World Series. If Herrera is traded to an American League team, he could face such complications. His team’s legal counsel would need to work with immigration attorneys to resolve them in advance.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Associate Dean of UNH Franklin Pierce School of Law.