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Marcell Ozuna is the real test of MLB’s domestic violence policy

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Here’s what makes this incident different from its predecessors

MLB: Atlanta Braves at Boston Red Sox David Butler II-USA TODAY Sports

Since returning to Beyond the Box Score, I’ve written three articles, including this one. All of them have been about sexual misconduct or violence.

The latest incident involves Atlanta outfielder Marcell Ozuna, who was arrested on two criminal counts for allegedly attacking his wife.

Ozuna is currently on the injured list with two broken fingers. According to the Sandy Springs, Georgia police department, however, that didn’t stop him from assaulting his wife:

Earlier today at 12:26 PM, Sandy Springs Police Officers received a 911 call requesting they respond to a residence on Windsor Cove regarding an assault in progress. As Officers arrived to the home, they heard screaming coming from inside and noticed the front door wide open. Due to the exigency of the known facts, Officers entered the residence through the front door and witnessed the suspect grabbing the victim by the neck and throwing her against a wall. Officers were able to immediately take the suspect into custody without further incident. In addition to the strangulation attempts, the suspect also struck the victim with his arm which has a cast from a previous injury. Preliminary investigation has revealed this incident to be domestic related between the suspect and his wife, both residents of the Windsor Cove home.

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The victim did have visible injuries, but was not transported to the hospital.

Now, there are two aspects of the Ozuna case which make this incident different from previous domestic violence cases in Major League Baseball.

The first is the nature of the charges, which include a serious felony. Aggravated assault by strangulation can be found in § 16-5-21 of the Georgia Criminal Code, which states as follows:

(a) A person commits the offense of aggravated assault when he or she assaults:

* * *

(3) With any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation; or

* * *

(b) Except as provided in subsections (c) through (k) of this Code section, a person convicted of the offense of aggravated assault shall be punished by imprisonment for not less than one nor more than 20 years.

In other words, Ozuna is facing the potential for twenty years in prison. Compare that to other high-profile domestic violence arrests; Jose Reyes was charged with a misdemeanor. Aroldis Chapman and Sam Dyson weren’t charged at all.

Ozuna, in short, is facing a charge with the possibility of multiple years of incarceration, and far less likelihood of the charges being dropped than, say, Roberto Osuna.

That point leads to the second way this is different from previous domestic violence instances: the complaining witness is not Ozuna’s victim.

Here, according to the police report, two officers saw Ozuna commit the charged criminal acts. This is the first time since the enactment of the Joint Domestic Violence, Sexual Assault, and Child Abuse policy that a domestic violence incident has been charged by a law enforcement officer as witness, and it means that charges can — and probably will — go forward whether Ozuna’s wife testifies or not.

In fact, under Georgia law, these circumstances mean that the charges cannot legally be dropped at his wife’s request. In a memorandum on guidelines for prosecuting domestic violence in Georgia, it is noted that

The victim in a family violence case cannot “drop” charges or “press” charges once the case is submitted to the prosecutor from the law enforcement agency. The decision whether or not to proceed with prosecution of the case is made solely by the prosecutor. Charges will be prosecuted without victim cooperation if there is deemed to be sufficient independent evidence to prove the elements of the crime(s) without the victim’s full involvement.

Two eyewitness accounts from police officers is almost certainly “sufficient independent evidence” to prosecute.

Now, it’s important to note here the other dynamics at play. Ozuna is Black, and if you’re reading this you probably already know the troubling trends of false police testimony and other misconduct which all too often lead to the arrests and convictions of innocent Black men. As such, it would be foolhardy in the extreme to take the police narrative of events as incontrovertibly and unquestionably true.

That said, there does appear to be evidence corroborating the police department’s story. For one thing, this isn’t the first time the Ozunas’ marriage has been marred by the spectre of domestic abuse.

She claimed self-defense at the time, and the charges were later dropped. She also reportedly told officers that she feared for her life after Ozuna threatened to kill her and stole her cell phone, even grabbing a knife to defend herself. Ozuna allegedly later hit her with the devices so hard they left bruises.

Further, the Ozunas are currently going through a divorce, and the outfielder no longer lives with his wife. She also testified that Ozuna has abused her previously. That said, it’s worth noting that she did testify that she does not fear her husband and that she did not want him incarcerated.

Taken in total, it seems highly likely that the prosecution has a strong case against Ozuna, with the outfielder likely facing multiple years of incarceration.

That said, there has been much ink spilled regarding whether the Uniform Player Contract permits Atlanta to void his contract themselves. With all respect to my esteemed colleagues in the baseball writing industry, I respectfully disagree with them, for two reasons. First, the conduct clause in the MLB contract probably is not preempted by the Collective Bargaining Agreement under these circumstances for two reasons. No agreement — not a player contract, not an insurance contract, and not a collective bargaining agreement — can legally protect intentional illegal activity. The California Supreme Court, which (as in many areas of law) has established rules in this area followed by much of the country, has explained that a contract will be enforced only where “to do so would not be condoning an illegal scheme.” If enforcing the contract - even one for collective bargaining or employment - would be to grant cover to or otherwise incentivize illegal activity, that portion of the contract will be severed, and if it cannot be, oe purpose of the entire contract has been frustrated, the entire contract will be voided.

But there’s another ground to void Ozuna’s contract as well. An equitable doctrine called “unclean hands” means that you cannot profit from your own misconduct. As the Seventh Circuit Court of Appeals colorfully explained,

Today, `unclean hands’ really just means that in equity as in law the plaintiff’s fault, like the defendant’s, is relevant to the question of what if any remedy the plaintiff is entitled to. An obviously sensible application of this principle is to withhold an equitable remedy that would encourage or reward (and thereby encourage) illegal activity.... In what may have been the earliest application of the principle of unclean hands, a highwayman was refused an accounting against his partner in crime (and later hanged, to boot, along with the partner).

In other words, because Ozuna was made unavailable to Atlanta by his own wrongful actions, it would be rewarding those wrongful actions to enforce the contract, and therefore he is without a remedy to do so.

Second, even if Atlanta lacks the power under these circumstances to void Ozuna’s contract, the commissioner’s office almost certainly does.

By means of example, I point to Felipe Vazquez, who was placed on the restricted list back in 2019 when he was first arrested, and remains there - unpaid - to this day. Long term placement on the restricted list is akin to voiding a player contract, as the player is unpaid and the team retains only the rights to the player. Were Ozuna to be incarcerated, he would be placed on the restricted list, during which time he would forfeit his salary.

If MLB follows the Vazquez model, they could place Ozuna on the restricted list immediately, and he would become unpaid.

If Ozuna is convicted, or otherwise agrees to a plea deal which includes incarceration, he would be on the restricted list and forfeit his salary during that time. Notably, that time on the restricted list would be separate and apart from any suspension or other discipline meted out by the MLB Commissioner’s office; should Rob Manfred decide to suspend Ozuna, his suspension would not begin until his time on the restricted list ended. As such, a one-year incarceration term and subsequent one-year suspension could, depending on the length of time required for his case to wend its way through the criminal justice system, have the same essential impact as voiding his contract in the first instance. As such, the question of whether Atlanta can void Ozuna’s four-year, $65 million contract is almost certainly irrelevant.

Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.