Written by Brad Walchuk, Staff Rep, CUPE, Local 3906 and Adjunct Professor, Brock University
The study of labour relations in professional sports is an effective lens into the broader study of labour-management relations. Free agency, trades, concussions, injuries, and suspensions are essentially workplace issues. Due to the popularity of professional sports, these issues are far more public than similar and more frequently occurring issues in more traditional workplaces
On April 29, Major League Baseball announced that it had suspended Los Angeles Dodgers pitcher Trevor Bauer for two full seasons (324 games plus playoffs) under the Major League Baseball-Major League Baseball Players’ Association Joint Domestic Violence, Sexual Assault and Child Abuse Policy (‘Policy’). Bauer has announced that he will be appealing the suspension. In doing so, he becomes the first player to appeal a suspension under the Policy. The 324 games – which will be unpaid – are in addition to the 99 regular-season games that Bauer already missed since being placed on paid administrative leave in July 2021.
The suspension is notable for a number of reasons. It is the longest suspension in the history of the Policy and the first suspension that will be appealed. The previous longest suspension under the Policy involved pitcher Sam Dyson, who was suspended for one full season (162 games) in 2021. Bauer is also a marquee player in MLB, having won the National League Cy Young Award (for best pitcher) in 2020. He then signed a three-year, $102 million free agent contract. Bauer’s suspension has already created considerable buzzin the sports world, and will also have major ramifications on Bauer. Veteran baseball writer Bob Nightengale notes that Bauer “may never put on a major league uniform again,” adding, “this suspension is really a baseball death sentence.” The suspension also provides an opportunity to engage in a broader discussion of labour-management relations.
Bauer was originally placed on leave in July 2021 after allegations of graphic domestic violence and sexual assault became public when a woman claimed that “Bauer assaulted her during two consensual sexual encounters that turned violent, resulting in head and facial trauma” and that he “strangled her to the point that she lost consciousness and punched her multiple times in the face.” In February 2022, the Los Angeles County District Attorney’s Office elected not to charge Bauer criminally, arguing it was “unable to prove the relevant charges beyond a reasonable doubt.”
While the District Attorney was conducting a criminal investigation, MLB was simultaneously undertaking its own employer-led investigation to determine if Bauer violated the league’s domestic violence policy. Under the terms of the Policy, a player can be suspended for a violation, even if they have not been charged with, or convicted of, a criminal offense. That Bauer can face a suspension of two years and lose $60 million in salary in the absence of a criminal charge or conviction illustrates an important reality of the employment relationship – the power of workplace policies, even in a unionized workplace.
In matters of employment disputes, there is a lower standard of proof than in criminal proceedings. In criminal proceedings, the standard is proof ‘beyond a reasonable doubt’. In contrast, in the realm of labour relations, the standard of proof is a ‘balance of probabilities.’ This means that something was more likely than not to have occurred. In Bauer’s case, the District Attorney felt it was unable to prove any possible charges under that higher legal standard.
Employers are not bound by this higher legal standard. What the law prohibits and classifies as a crime is far narrower than what workplace policies prohibit and classify as a violation. As Nightengale noted, “we don’t know…what MLB found in its investigation since the results were not released,” but rightly adds, “considering the length of the suspension, they must have been damning.”
In this instance, the Policy itself makes clear that the Commissioner can unilaterally suspend a player, even in the absence of a charge or conviction. This is also a joint policy that the union and employer have agreed to. In other words, the union has consented to the employer having this power to enforce the policy through suspension. This will make it harder for an arbitrator to find Bauer’s suspension to be unreasonable and to overturn the discipline.
A joint policy between the union and the employer is rare; employers unilaterally impose most workplace policies. Even if this were not a joint policy, there is a very good chance of an arbitrator finding the suspension to be reasonable. Employers can generally impose policies to the degree that they do not interfere with provisions contained within a collective agreement (or that interfere with the legislative rights held by employees). Such policies – subject to certain conditions – fall within the realm of a ‘management rights’ clause.
In Canada, an employer’s ability to impose workplace policies are subject to the ‘KVP test’, or “an arbitral doctrine that holds employer rules to a standard of reasonableness.” The principles contained within the KVP test – stemming from a 1965 arbitration ruling – were endorsed by the Supreme Court of Canada as a proper standard of reasonableness. The test, which will not apply in Bauer’s case, has six aspects. The employer’s actions must be: consistent with the collective agreement; reasonable; clear and unequivocal; brought to the attention of the employees affected before the employer attempts to act on it; enforced consistently since its introduction; and, where the rule is invoked to justify discharge, the employee was notified that a breach of the rule could result in discharge. Employer policies can regulate behavior on the worksite or off it. Employer policies can regulate behavior on the worksite or off it provided the rules it adopts satisfy the KVP test.
An important question that will emerge in Bauer’s appeal is the degree to which MLB can regulate how players behave outside of the workplace, and particularly ‘in the bedroom.’ Bauer’s suspension illustrates that simply because the state is unable (or unwilling) to prosecute does not mean that the employer cannot act. Whether Bauer is successful in his appeal or not, Major League Baseball has taken a much-needed step to penalize those who violate the Joint Domestic Violence, Sexual Assault and Child Abuse Policy. Whatever the outcome of that appeal – and we can save that for another blog post – MLB has taken its boldest stance against domestic violence and sexual assault.
Brad Walchuk works for a public sector union in Hamilton, Ontario. He is also employed as a part-time instructor in the Department of Labour Studies at Brock University where, among other things, he teaches a course on labour relations in professional sports. His opinions are his own and do not necessarily reflect those of his employer(s).