How MLB could Punish Astros, Brandon Taubman in Wake of …

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The fallout of Houston Astros assistant general manager Brandon Taubman’s callous remarks to female reporters, and the ill-conceived attempt by his franchise to discredit the journalist who reported on those remarks, is now the subject of an investigation by Major League Baseball. The investigation could find that journalists were subject to a hostile work environment. It could also motivate MLB commissioner Rob Manfred to punish Taubman and the Astros and pursue corrective strategies for team-media interactions in MLB clubhouses.

The journalist who reported on Taubman’s remarks is Stephanie Apstein, a baseball writer for Sports Illustrated. She was in the Astros clubhouse on Saturday night after the Astros defeated the New York Yankees in Game 6 of the American League Championship Series. The Astros thus clinched the AL pennant and earned a ticket to play the Washington Nationals in the World Series.

About Punish
Punishment is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority—in contexts ranging from child discipline to criminal law—as a response and deterrent to a particular action or behaviour that is deemed undesirable or unacceptable. The reasoning may be to condition a child to avoid self-endangerment, to impose social conformity (in particular, in the contexts of compulsory education or military discipline), to defend norms, to protect against future harms (in particular, those from violent crime), and to maintain the law—and respect for rule of law—under which the social group is governed. Punishment may be self-inflicted as with self-flagellation and mortification of the flesh in the religious setting, but is most often a form of social coercion.
The unpleasant imposition may include a fine, penalty, or confinement, or be the removal or denial of something pleasant or desirable. The individual may be a person, or even an animal. The authority may be either a group or a single person, and punishment may be carried out formally under a system of law or informally in other kinds of social settings such as within a family. Negative consequences that are not authorized or that are administered without a breach of rules are not considered to be punishment as defined here. The study and practice of the punishment of crimes, particularly as it applies to imprisonment, is called penology, or, often in modern texts, corrections; in this context, the punishment process is euphemistically called “correctional process”. Research into punishment often includes similar research into prevention.
Justifications for punishment include retribution, deterrence, rehabilitation, and incapacitation. The last could include such measures as isolation, in order to prevent the wrongdoer’s having contact with potential victims, or the removal of a hand in order to make theft more difficult. Of the four justifications, only retribution is part of the definition of punishment and none of the other justifications is a guaranteed outcome, aside from obvious exceptions such as an executed man being incapacitated with regard to further crimes.If only some of the conditions included in the definition of punishment are present, descriptions other than “punishment” may be considered more accurate. Inflicting something negative, or unpleasant, on a person or animal, without authority is considered revenge or spite rather than punishment. In addition, the word “punishment” is used as a metaphor, as when a boxer experiences “punishment” during a fight. In other situations, breaking a rule may be rewarded, and so receiving such a reward naturally does not constitute punishment. Finally the condition of breaking (or breaching) the rules must be satisfied for consequences to be considered punishment.Punishments differ in their degree of severity, and may include sanctions such as reprimands, deprivations of privileges or liberty, fines, incarcerations, ostracism, the infliction of pain, amputation and the death penalty.
Corporal punishment refers to punishments in which physical pain is intended to be inflicted upon the transgressor.
Punishments may be judged as fair or unfair in terms of their degree of reciprocity and proportionality to the offense.
Punishment can be an integral part of socialization, and punishing unwanted behaviour is often part of a system of pedagogy or behavioral modification which also includes rewards.

How MLB Could Punish Astros, Brandon Taubman in Wake of …

About Astros,

As Apstein details in her Oct. 21 story “Astros Staffer’s Outburst at Female Reporters Illustrates MLB’s Forgive-and-Forget Attitude Toward Domestic Violence,” she witnessed Taubman turn to three female reporters, one of whom was wearing a purple domestic-violence awareness bracelet. He then yelled, a half dozen times, “Thank God we got Osuna! I’m so f—— glad we got Osuna!”

“Osuna” refers to closer Roberto Osuna, whom the Astros acquired in a July 2018 trade while the pitcher was serving a 75-game suspension for domestic violence. Two months earlier, law enforcement in Toronto had charged Osuna with brutally assaulting the mother of his 3-year-old son. In June 2018, Manfred suspended Osuna following a league investigation. The alleged victim, meanwhile, returned to her home in Mexico and declined to testify against Osuna. In September 2018, Osuna’s attorneys negotiated a peace bond (essentially a plea deal) with prosecutors in Toronto. The assault charge was dropped. In exchange, Osuna agreed to undergo counseling and refrain from contacting the alleged victim.

How MLB Could Punish Astros, Brandon Taubman in Wake of …

Other journalists who were present in the Astros clubhouse confirmed Apstein’s reporting. Tellingly, not one journalist offered a different account. Also, the Astros refused to comment to Apstein for her story. The team also would not make Taubman available for comment.

In other words, both the Astros and Taubman had opportunities to clarify Taubman’s remarks before Apstein’s story was published. They chose not to.

Instead, the Astros waited for the story to publish on Tuesday. Shortly thereafter, the team issued a statement that tried to discredit Apstein and Sports Illustrated. The statement, which noticeably was not attributed to any named person employed by the Astros, dismisses the story as “misleading and completely irresponsible.” The statement further insists that Taubman was merely supporting a player who had struggled in the game—Osuna had given up two earned runs during the ninth inning of Game 6—and that Taubman was not directing his comments to anyone in particular. The statement goes so far as to say that Apstein “attempt[ed] to fabricate a story where one does not exist.”

Given that witnesses had already corroborated Apstein’s account, the Astros’ attempt to blame Apstein and Sports Illustrated defied logic from the start. Any semblance of a strategy also collapsed on Tuesday when Taubman issued a statement acknowledging that he had erred. Astros owner Jim Crane also issued a statement which highlights that the Astros “ensure mandatory training [related to domestic violence] annually for all of our employees.”

Neither Taubman nor Crane apologized to Apstein, despite the fact that hours earlier the Astros had falsely claimed that she tried to invent a story. Late Tuesday, the Baseball Writers Association of America released a statement demanding that the Astros issue a public apology for falsely accusing Apstein.

A qualified apology appears to have made matters worse

Taubman’s attempt to—sort of—apologize has triggered a new round of controversy.

His statement expresses sorrow for using “inappropriate language” and acknowledges that his comments were “unprofessional.” Taubman, a 2007 graduate of Cornell University and respected expert in baseball analytics, assures the reader that he is “deeply sorry and embarrassed.” He also insists that he does not harbor a “regressive attitude” about domestic violence and maintains that any attempt to claim otherwise is a misinterpretation of reality.

Taubman also says he is “sorry if anyone was offended by my actions.” The phrase “if anyone was offended” stands out. It suggests that Taubman believes his actions weren’t so egregious that everyone would be offended, only that some people—for reasons that he doesn’t suggest—might take offense.

A more complete apology would have left out “if anyone was offended.” That phrase attempts to divert attention away from the offending party and towards those whom he or she offended. Here, it invites the public to question why some people would be offended but others not by Taubman screaming, ““Thank God we got Osuna! I’m so f—— glad we got Osuna!”

Perhaps a “If anyone was offended” public relations strategy would have worked years ago. It doesn’t now.

Manfred has the legal authority to punish Taubman and the Astros

Both Taubman and the Astros could face MLB discipline, and several legal documents furnish Manfred with the discretion to reach such a determination.

One source of authority is MLB’s Regulations for Club/Media Relations. The regulations instruct that “under no circumstances shall any club discriminate in any fashion against an accredited member of the media based upon race, creed, sex or national origin.” In addition, they prohibit any “threats directed to members of the media.” Baseball is authorized to fine or suspend team executives for violating this policy. If Manfred concludes that Taubman’s yelling created a hostile work environment, he could punish him as well as the Astros.

A second source of authority is MLB’s Workplace Code of Conduct. It forbids persons in baseball from engaging in misconduct that could be classified as harassment or discrimination. Such misconduct can occur “on the phone, through texting, tweeting, or email, in the locker room or stadium, at an official Club or MLB event, social gathering, press briefing, Spring Training, or during recruiting.” Certain types of misconduct are defined. One type is “slurs, insults or jokes” that attempt to make light of a person’s race, gender and other demographic traits. Another is “bullying,” which is described as “abusive or intimidating behavior based on race, gender, color, religion, national origin, sexual orientation or gender norms.” Taubman’s yells could potentially fall under these categories.

A third source of authority would derive from Manfred’s expansive powers under MLB’s Constitution. Under Article II of the constitution, Manfred can investigate any activity that is “suspected to be not in the bests interests of” baseball. Manfred has also complete discretion to determine whether an investigated activity violates the “best interests.” Likewise, he can determine “what preventive, remedial or punitive action is appropriate.” Manfred could therefore suspend or fine Taubman, or the commissioner could order the Astros to do so. Similarly, the commissioner could fine the Astros.

In applying these authorities, Manfred and league attorneys will almost certainly demand that Taubman interview with them and explain himself. Baseball will probably also ask Taubman’s co-workers, including his boss, general manager Jeff Luhnow, as well as Astros human resources staff to reveal if there have been workplace complaints against Taubman. Baseball’s investigation will probably also lead them to the journalists who witnessed the incident. While those journalists would not be obligated to comply with MLB interview requests—MLB is a private entity and thus has no subpoena power—they presumably would comply to offer detail on what took place and its impact on them.

Manfred will also explore the context of what took place. It was clearly not a random event. According to the Houston Chronicle’s Jenny Dial Creech, certain Astros employees have privately complained about the degree of media attention devoted to Osuna and his 2018 domestic violence incident. Manfred will want to assess if Taubman’s outburst reflects organizational frustration about media coverage.

Manfred has clear business motivation to punish Taubman and the Astros

Manfred could reason that even if Taubman did not intend to cause offense, he exhibited appalling judgment in engaging in conduct that taunted women. In turn, Taubman has harmed the league’s business and image.

To that point, the fallout of Taubman’s remarks could negatively impact the league’s relations with corporate sponsors, journalists and broadcasters. The league obviously does not want clubhouses to be hostile environments for women who work as journalists and in other capacities. A workplace along those lines would be unethical, and potentially unlawful; it would also damage baseball’s relationship with fans, viewers and consumers.

Manfred is also likely mindful that he too could be blamed. While Taubman does not work for baseball—he works for the Astros—the commissioner has ultimate responsibility over all aspects of the game. The buck supposedly stops with him. Manfred’s reputation is harmed when a top executive for a team would behave in the manner displayed by Taubman. Meanwhile, the MLBPA could point out that if Manfred declines to take action with a team executive, he should remember that the next time a player faces potential discipline.

Manfred could also take stock of the fact that Taubman’s apology faces its own line of criticisms. The apology has failed to extinguish—and has possibly even exacerbated—the underlying controversy.

Similarly, Manfred could punish the Astros under a theory that the team failed to properly train and supervise Taubman, and that the team unwisely tried to blame the reporter for doing her job. If a team can’t tell the truth in a matter related to domestic violence, that undermines the league.

Relevance of the Joint Policy on Domestic Violence and Larry Baer

It’s also possible that MLB and MBLPA’s Joint Domestic Violence, Sexual Assault and Child Abuse Policy could be invoked. Although the joint policy, which was adopted in 2015, is worded to apply to players, MLB subsequently developed procedures to ensure the underlying principles apply to everyone employed by either Baseball or any of the 30 clubs or minor league affiliates.

Baseball has punished several players under the joint policy. They include Jose Torres (100 games), Odúbel Herrera (85 games), Osuna (75 games), Addison Russell (40 games) and Steven Wright (15 games).

One executive, San Francisco Giants CEO Larry Baer, has also been punished for misconduct related to a family member. In March, baseball suspended Baer for three months in the aftermath of a recorded incident of him jostling with his wife, Pam Baer, over possession of his cell phone in San Francisco’s Hayes Valley. The couple were arguing over a family matter and the argument quickly escalated. He grabbed her right forearm and right hand, and she fell to the ground. She was not treated for any injuries. MLB’s suspension separated Baer, without pay, from the Giants and he was required to undergo counseling as well.

The joint policy defines “domestic violence” to include “emotional and/or psychological intimidation, verbal violence [and] harassment.” Taubman’s remarks could conceivably constitute intimidation. However, his remarks concerned another person and, while grossly insensitive, did not threaten violence. There also is no known pattern of Taubman engaging in that type of dialogue with reporters; a one-time incident is less likely to trigger a sanction than repeat acts.

To the extent MLB punishes Taubman and/or the Astros, the punishment would most likely reflect how their conduct undermined the league’s commitment to a safe and comfortable work environment and damaged the league’s relations with key constituencies.

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