New on Sports Illustrated: Breaking Down Domingo Germán's 81-Game Suspension for Domestic Violence

Yankees pitcher Domingo Germán will miss the first 63 games of the 2020 season for violating MLB's domestic violence policy.

Major League Baseball commissioner Rob Manfred on Thursday suspended New York Yankees starting pitcher Domingo Germán 81 games for violating the Joint Domestic Violence, Sexual Assault and Child Abuse Policy. Germán’s suspension is the fourth longest in MLB history for domestic violence. Only José Torres (100 games) Odúbel Herrera (85 games) and Héctor Olivera (82 games)—all of whom, unlike Germán, were charged with crimes—received lengthier suspensions.

Germán, 27, will be eligible to return to the Yankees after only 63 games in the 2020 regular season. The 18-game discrepancy between that and the 81-game penalty reflects the fact that Germán earned the baseball equivalent of “time served” during the 2019 regular season and playoffs. MLB placed him on administrative (paid) leave on Sept. 19, causing him to miss the final nine games of the regular season and the Yankees’ nine postseason games. Pursuant to the joint policy, administrative leave placement ensures that a player who is accused of serious misconduct is separated from his team while MLB investigates. At the same time, placement doesn’t represent a finding by MLB that the player is guilty—a point consistent with the fact that the player continues to be paid his salary. Now that Germán has been suspended, he will need to repay the Yankees the salary he earned while he was on administrative leave.

The incident which led to Germán’s punishment remains undisclosed by all relevant parties, including MLB, the Yankees and Germán himself. There are uncorroborated reports that he hit or slapped his girlfriend in a public setting in Yonkers, New York, an alleged incident that occurred after Germán attended a charity gala hosted by his teammate, CC Sabathia. There is speculation that an MLB official witnessed the incident, but there is no indication that a police report was filed or that law enforcement formally investigated.

The lack of an accompanying criminal investigation placed no constraint on Manfred’s authority. The policy supplies him with considerable latitude to determine whether a player engaged in domestic violence. Domestic violence is an expansively defined term and can constitute physical violence, stalking or threats. To that end, the policy defines domestic violence as inclusive of “physical or sexual violence, emotional and/or psychological intimidation, verbal violence, stalking, economic control, harassment, physical intimidation, or injury.” The policy also authorizes a suspension for a single, one-time incident of abusive behavior. Furthermore, Manfred, as commissioner, has total discretion to determine an appropriate suspension—there are no limits or even recommended figures.

Germán has a collectively bargained right to appeal the suspension. An appeal would be heard by a three-person arbitration panel. MLB and MLBPA would each select one panelist. The league and union would then jointly select the third panelist. The panel would assess if Manfred possessed “just cause”—meaning sufficient certainty in light of known facts, witness statements and available precedent—to (1) conclude that Germán violated the policy and (2) decide that Germán deserved a suspension for as long as 81 games.

Interestingly, Germán will not appeal the suspension. As part of his acceptance of responsibility, Germán has also agreed to undergo counseling and make a donation to Sanctuary for Families, a New York City-based non-profit organization dedicated to aiding victims of domestic violence.

Why would Germán not appeal? There are several possible reasons.

First, Germán might genuinely acknowledge that he violated the policy. He might also regard the 81-game suspension as appropriate for his transgression. Germán agreeing to both undergo counseling and make a donation to a charity for domestic violence victims are suggestive of a desire on his part to become a better person and partner.

A second possibility would be more transactional: the 81 games could reflect a negotiated number between Germán (and family), his representatives, MLBPA and MLB. MLB might have threatened to impose a lengthier suspension if Germán had refused to accept responsibility and, essentially, plead guilty. Under the policy, Manfred had all the discretion and thus all the leverage. It was his, and only his, choice whether to suspend Germán and if so, for how long. The fact that Germán was neither charged with a crime (let alone convicted of one) nor sued are as meaningful or as irrelevant as Manfred sees fit. Germán also knew that Manfred hasn’t hesitated to impose very long suspensions for domestic violence. All of those factors placed Germán in a disadvantageous position to threaten an appeal.

Third, it’s possible that MLB has agreed to keep confidential its investigative findings—which likely include interviews with Germán, his girlfriend and other witnesses—so long as Germán agreed to accept responsibility. This lack of public disclosure is potentially beneficial to Germán and his girlfriend on at least a few levels.

Perhaps most importantly, and as astutely observed by Lindsey Adler of The Athletic, victims of domestic violence have reasons to seek confidentiality and privacy. “Consider how you'd feel if you were a victim,” Adler notes on Twitter, “and your story was made public because of some expectation of obligation.”

In addition, public disclosure of the incident’s details could attract the attention of law enforcement, motivate them to investigate and, potentially, charge Germán with crimes. Also, the public becoming aware of the incident’s details would likely damage Germán’s reputation with fans and sponsors, and also with (to the extent they aren’t aware of what took place) his teammates and coaches.

The MLBPA is a relevant party in this discussion. The union, which has a right to file an appeal with or without Germán’s consent, might have concerns that a player has been suspended for a half-season for an incident that played out entirely outside of the legal system. Germán’s suspension will be precedent going forward and could lead to lengthier suspensions for other players accused of domestic violence. At the same time, MLBPA agreed to bestow this discretion to Manfred in the CBA. The current CBA will expire on Dec. 1, 2021 at 11:59 pm ET. It’s possible the union might demand more constraints on the commissioner’s power to discipline in the next CBA.

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.

January 03, 2020 at 05:25AM
Breaking Down Domingo Germán's 81-Game Suspension for Domestic Violence