Domingo Germán’s suspension shows we’ve learned nothing about domestic violence

Back in September, towards the close of a season which saw multiple domestic violence suspensions in Major League Baseball, as well as Felipe Vazquez arrested for sexually assaulting a teenager, I wrote that MLB’s much-vaunted domestic violence policy wasn’t working.

Yes, the policy provides for suspensions without pay, a positive step. But the policy has a flip side, too. By leaving the discipline in the hands of MLB, a league notoriously secretive and infamous for its attempts to keep the skeletons in its closet out of view of law enforcement, players are, in a perverse way, receiving a kind of ally. MLB might suspend a player, but it can’t - and, as German’s case shows, won’t - put that player behind bars, and may actively work to prevent that outcome. It won’t keep that player from the postseason, and in fact will help to facilitate trades allowing the player to get there. It will continue to market the player. And the public will eat it up, with standing ovations and fawning profiles of family men. In that light, it’s not surprising at all that players like Vazquez and German would see just how far they can push that odious envelope. It’s only surprising, in the end, that it’s taken this long to fall this far.

* * * Of the fifteen (15) players investigated under the Joint Policy, thirteen (13) were suspended. Of those 15, just two (2) were white: Derek Norris and Steven Wright. Norris was a free agent, suspended a handful of games at the end of the season. Steven Wright was suspended 15 games after being arrested for domestic abuse. Every other person suspended under the policy was a person of color. All but one of them - Jeurys Familia - received suspensions of 20 games or longer. Familia, too, received 15 games. . . . Multiple studies have confirmed that people of color are not more likely to commit intimate partner violence, and in fact rates amongst white men and men of color are essentially equivalent. So why are men of color disproportionately being suspended under the policy?

A month later, I proposed a survivor-centric solution within these pages, focusing on eliminating the use of intimate partner violence as an inefficiency to be exploited and instead on prevention and avoidance of ineffective zero-tolerance policies. Major League Baseball responded to that article that “many of the suggestions within the piece are things that we already do.”

Last week, MLB had a chance to prove it. Instead, the league proved that domestic violence remains as great a stumbling block as ever. Per ESPN:

New York Yankees pitcher Domingo German has been given an 81-game suspension for violating the MLB domestic violence policy, commissioner Rob Manfred announced Thursday.

Germán, who had already been placed on administrative leave for the final 18 games of the 2019 season, including nine postseason games, will sit out the first 63 games of the 2020 season.

Germán was put on administrative leave on Sept. 19 while MLB investigated alleged domestic violence involving his girlfriend, with whom he has at least one child.

* * *

Germán will not appeal the discipline, which also includes participation in an evaluation and treatment program supervised by MLB’s Joint Policy Board. He also has agreed to make a contribution to Sanctuary for Families, a New York City-based nonprofit organization dedicated to aiding victims of domestic violence.

For starters, once again we have a domestic violence suspension issued as the result of a settlement. As Ken Davidoff noted for the New York Post, Germán agreed to the discipline, a standard practice for the league as I’ve written before. Germán, in other words, agreed to a shorter suspension in exchange for not appealing. This sort of resolution isn’t necessarily dissimilar to a plea bargain or civil settlement, both of which have their utility, but as I’ve written previously, it’s an open question whether baseball’s accused domestic abusers ought to have a say in their own discipline, particularly when that discipline is being enforced by their employer.

Then there’s the length of the suspension — the fourth-longest yet meted out, behind only Jose Torres, Odubel Herrera, and Hector Olivera (a very ignominious group). But Germán will be allowed in the postseason, once again making him attractive trade bait for a team willing to use Germán’s conduct as an opportunity to “buy low” on him. On the other hand, it means that the New York Yankees, in the 2020 playoffs, could start a pitcher who was suspended for publicly hitting his girlfriend, and finish the game with a pitcher who choked his girlfriend.

As for Germán, this kind of zero-tolerance punishment isn’t what experts recommend. For one thing, it means that Germán primary loss is financial, and he’s making only about $620,000 in 2020 - meaning he’s losing over $200,000, a significant amount of money for a pre-arbitration player, plus the contribution he’s being compelled by the league to make to a domestic violence organization.

In other words, this is the very type of zero tolerance punishment which, as I wrote back in October, both doesn’t work and further endangers survivors. Remember, the joint policy gives Rob Manfred plenary authority over suspensions, meaning that the commissioner can issue any suspension length he pleases, subject only to players’ ability to negotiate them down. And, of course, wealthier players with more resources will be able to achieve better results on that front.

So what should the Yankees do?

For one thing, a team now employing two players suspended for domestic abuse should probably start examining its own corporate culture, and may want to join Germán in making that donation. But the greater question continues to rest with Major League Baseball, and its application of a domestic violence policy that consistently raises more questions than it answers. As we head into negotiations for the next CBA, set to expire after 2021, the domestic violence policy remains one area which deserves extensive scrutiny.

Some have called for Germán to be released by the Yankees, and Germán’s actions almost certainly violate paragraph 7(b)(1) of the uniform MLB player contract, requiring players to “conform [their] personal conduct...to standards of good citizenship . . . .” However, the Joint Policy expressly reserves disciplinary authority to the league for domestic violence matters, and gives authority to the team only where the league declines to act. Because the CBA preempts player contracts to the extent of a conflict, the Yankees can’t release Germán. And, to be honest, releasing Germán would just be another zero-tolerance punishment that doesn’t work.

We should also note that Germán’s suspension means yet another player of color has now been suspended under the policy. Still, just two of fifteen suspended players were white. Why this policy is disproportionately impacting black and brown players is becoming legitimately problematic, especially because we know that people of color are not more likely to be domestic abusers than white people.

There really are only three options here:

1. MLB employment self-selects for people of color more likely to be domestic abusers and simultaneously for white people who are less likely to be domestic abusers;
2. MLB is suspending players of color who have not actually committed domestic abuse; or
3. MLB is not suspending white players who have committed domestic abuse.

The first possibility is absurd on its face. Given the evidence in each suspension and the MLBPA’s decision to not appeal, the second seems similarly unlikely. In reality, there is now a legitimate question as to why players of color who commit intimate partner violence are being punished and white players are not, especially considering the majority of MLB players are white.

And one final point. It seems that those of us who write about baseball haven’t learned much either. Last month, I wrote about Jonah Keri that how we treat domestic violence has a direct impact on how we write about it, and therefore the players we cover and write about. So it was disconcerting indeed to see how many articles covering Germán’s suspension begin with his statistics.

The New York Times began by noting that Germán was a “young pitcher” who “led the team in victories” in 2019. Randy Miller of NJ Advance Media noted that Germán was a “breakout star” and noted his win-loss record and earned run average before saying he would be “dealing” with a suspension. Ryan Gaydos of Fox News praised Germán’s “career-high 153 strikeouts . . . before he left the team.” Connor Byrne called him a “stabilizing presence” in the Yankees’ rotation.

Simply put, it’s neither productive nor warranted for us to provide superlatives to a domestic abuser. Zero tolerance isn’t effective, but punishment is absolutely warranted, and praise and glorification of abusers is, frankly, repugnant. It is entirely unnecessary to call a man who publicly assaulted his girlfriend a “breakout star” or “stabilizing presence,” and the number of victories he had in 2019 is irrelevant to the discipline at hand. It does show, however, that we continue to view domestic violence as a mere distraction from the game, an obstacle for a team to overcome on the field instead of centering the needs of survivors. We can, and must, do better.

Sheryl Ring is a litigation attorney and Legal Director at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author’s. This post is intended for informational purposes only and is not intended as legal advice