Can MLB Punish Umpire Rob Drake for Controversial Tweet?

MLB is investigating after umpire Rob Drake tweeted "I will be buying an AR-15 tomorrow, because if you impeach MY President this way, YOU WILL HAVE ANOTHER CIVAL WAR!!!"
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Major League Baseball has launched an investigation into longtime umpire Rob Drake over a controversial tweet. As first reported by ESPN, Drake on Tuesday tweeted, “I will be buying an AR-15 tomorrow, because if you impeach MY President this way, YOU WILL HAVE ANOTHER CIVAL WAR!!! #MAGA2020.” The tweet, which misspells “civil”, is in reference to the U.S. House of Representative’s impeachment inquiry into President Donald Trump and protests by some members of the Congress against the process in which that inquiry is taking place.

Drake, 50, has since deactivated his Twitter account. He has been an MLB umpire since 1999.

To be clear, Drake has a First Amendment right to express political viewpoints. The First Amendment, however, is not the most relevant source of law in this situation. The First Amendment only ensures that we can opine without fear of government retribution. It does not insulate employees, particularly those of private businesses, from sanction by their employers.

The most relevant sources of law are Drake’s employment contract (not publicly available) and the collective bargaining agreement between the Office of the Commissioner and the umpires’ labor representative, the Major League Baseball Umpires Association (formerly named the World Umpires Association). The two sides agreed to a CBA that runs from January 1, 2015 to December 31, 2019.

As it is between two private entities, the CBA is not a public document. It is only made public if the parties consented to make it public (they have not). However, portions of the CBA have become public through federal litigation. Specifically, umpire Angel Hernandez’s racial discrimination lawsuit against the commissioner has led to portions of the CBA being disclosed in court documents. One relevant disclosure is the CBA’s restriction on umpire speech:

“An umpire shall not make public statements . . . that are critical of the Commissioner of Baseball, or that otherwise are inimical to the best interests of Major League Baseball.”

The key question, then, is whether Manfred will regard Drake’s tweet as “inimical to the best interests of Major League Baseball.”

Generally, leagues do not issue punishments over expressions of political viewpoints. This is a topic in the news with Houston Rockets general manager Daryl Morey’s tweet about protesters in Hong Kong. Some NBA players, including LeBron James, have criticized Morey.

Leagues are hesitant to punish expressions of free speech for good reason. Consider fans of baseball. Fans include people who hold very different political views and opinions. If MLB punished players, managers and umpires for expressing liberal views, or for expressing conservative views, MLB would annoy some portion of its consumer base and probably lose revenue. MLB would also aggravate players, managers and umpires who hold the viewpoints that triggered sanction.

To that point, MLB has not punished Drake for previous tweets that are politically controversial and that some would regard as offensive. As uncovered by USA Today, Drake has endorsed “birther” conspiracy theories in tweets critical about former President Barack Obama and has called former U.S. Secretary of State Hillary Clinton a “f------ liar” in one tweet. Those tweets did not lead to any known discipline (it’s unknown if MLB was aware of them).

In contrast to leagues, endorsed companies tend to be much more scrutinizing of political expressions. This was made clear in 2011, when Hanesbrands terminated its endorsement deal with former Pittsburgh Steelers running back Rashard Mendenhall after his controversial tweets about the September 11 attacks). Endorsement contracts usually contain “morals clauses” that enable an endorsed company to exit a contract with a player who brings on controversy to himself or herself, or to the company’s brand.

Manfred could reason that Drake’s tweet is problematic not because it supports President Trump in the impeachment process and not because it references gun ownership (which, in general, is protected by the Second Amendment), but rather because it warns that Drake will obtain an assault rifle in the context of inciting rebellion or insurrection. Manfred could decide that Drake’s statement morphed from political speech into threatening speech.

In weighing what to do, Manfred will consider whether Drake’s tweet could damage MLB’s business relations with sponsors, as well as with fans and media—especially in the times we live in with school shootings and mass shootings. MLB has expressed viewpoints on guns in the past, including opposition to legislation that would allow guns into ballparks and stadiums. At the same time, should MLB punish Drake, it would likely clarify that the punishment is not for Drake supporting President Trump or gun ownership, but rather for the apparent threat.

Drake could argue several points in his defense. One would be that his Twitter page is his personal page and is not an extension of his employment as an MLB umpire. Although his Twitter page, @thedrake30, has been taken down, it’s possible his Twitter bio may have stated this his tweets are his own and not associated with MLB. If Drake kept his page private, such an argument would be enhanced. Generally, though, this type of defense is not especially most persuasive, especially when one’s Twitter account is public. Public statements on Twitter are still public statements, no matter how many disclaimers they contain.

Drake could also insist that he was not being literal. His reference to a civil war, Drake might contend, was merely for dramatic effect—and his use of all caps could be consistent with that line of reasoning. Drake could also emphasize that political rhetoric on Twitter is often inflamed and hyperbolic. It seems fair to say that people are willing to tweet statements that they would be far more hesitant to say in person or in other writings. Drake could also point out the practical impossibility of starting a civil war. In addition, the fact that he misspelled “civil” could help him argue that the tweet was a spur-of-the-moment reaction to a political controversy and does not constitute a plan or threat to do anything harmful.

If Drake is punished or fired, his union could defend him. While the CBA is not a public document, it likely contains dispute resolution procedures that enable umpires to contest punishments and terminations.

We’ll keep you posted.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.