Sources: Bauer digs in heels as discipline looms

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Editor’s note: This story contains graphic descriptions of sexual assault allegations.

In the two months since Trevor Bauer last appeared in a game for the Los Angeles Dodgers, his future — legally and professionally — has been the source of great speculation around Major League Baseball. With a California judge rejecting a woman’s request for a restraining order against Bauer and the Pasadena Police Department sending its investigation into the woman’s allegations that Bauer sexually assaulted her to the district attorney’s office, some short-term clarity could be near.

It also might be short-lived.

Regardless of whether Bauer is charged with a crime, sources around the sport told ESPN they expect the league to levy a significant suspension against the 30-year-old. Further, front-office officials question not just whether the reigning National League Cy Young Award winner will return to the field with the Dodgers but whether any team in MLB will be willing to roster him after multiple women have accused him of abuse.

In recent weeks, ESPN spoke with more than two dozen sources — executives, owners, lawyers, players and others familiar with how the league’s domestic violence policy operates — to assess Bauer’s future. While MLB and Bauer’s camp declined comment, the picture that emerged is one in which Bauer will remain a prominent figure in baseball even as he’s not in a uniform, with him protesting the discipline handed down and trying to salvage his career and money.

The fallout from the allegations against Bauer by the California woman, as well as an Ohio woman who at one point sought a protective order against him, has left plenty of questions. Here is an attempt to answer them.

What’s the latest?

The Los Angeles County District Attorney’s office is poring over information provided by Pasadena police after a 3½-month investigation into an alleged sexual assault during which the California woman said Bauer punched her in the face and vagina and choked her unconscious without her consent. The woman attempted to secure a permanent restraining order against Bauer but was denied after a judge determined after a four-day hearing that Bauer was not “likely to cause petitioner any harm or even have contact with [her].” On July 2, MLB placed Bauer on administrative leave — a designation that has been extended seven times and remains in place today. During administrative leave, Bauer cannot play but is being paid.

What is next for Bauer?

The district attorney will decide whether to file charges against Bauer based on the evidence gathered by Pasadena police. The woman said Bauer assaulted her while the two had sex at his Pasadena home April 21 and May 16. Bauer’s attorneys have said the two had consensual rough sex. The judge in the restraining order case said “the injuries as shown in the photographs [provided by the woman] are terrible” but added “she was not ambiguous about wanting rough sex in the parties’ first encounter and wanting rougher sex in the second encounter.” Even with the ruling in the civil case, prosecutors could pursue criminal charges against Bauer. It is unclear how soon the DA’s office will make its decision.

How could this affect his baseball career?

If the DA files charges, it complicates matters for the league. When Hall of Famer Ferguson Jenkins was arrested in 1980 for drug possession, commissioner Bowie Kuhn suspended him for not cooperating with the league’s investigation. An arbitrator overturned the suspension, claiming that by cooperating with the league’s probe, Jenkins could be harming his ability to defend himself from criminal charges. While commissioner Rob Manfred has meted out discipline with players’ criminal cases still pending, the significant public interest in Bauer’s case, lawyers suggested, has caused the league to proceed conservatively, even with a preponderance of evidence from the civil hearing.

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MLB and the MLB Players Association’s joint domestic violence, sexual assault and child abuse policy, which governs how the league handles investigations and discipline in such cases, does offer an option beyond keeping Bauer on administrative leave ad infinitum or trying to suspend him without pay. If Manfred believes “he is not in a position to impose discipline until the resolution of a criminal or legal proceeding, but that allowing the Player to play during the pendency of the criminal or legal proceeding would result in substantial and irreparable harm to either the Club or Major League Baseball … the Commissioner may suspend the Player with pay pending resolution of the criminal or legal proceeding.”

If prosecutors decline to file charges, the league would proceed down the traditional disciplinary path against Bauer.

What does that process look like?

The league’s department of investigations has sought its own separate set of facts since the California woman was granted the temporary restraining order in late June. Its investigation is ongoing. If Bauer is not charged, MLB will attempt to talk with him, determine the level of discipline warranted and penalize him.

Will Bauer talk to the league?

If there are no pending or threatened criminal charges, Bauer cannot avail himself to protections afforded by the Jenkins decision and would certainly face an adverse inference — being penalized for not addressing a question — in any subsequent disciplinary hearing. He could use the meeting to tell the league his side of the story in his own words, which he did not do in the restraining-order case, in which he invoked the Fifth Amendment and did not answer questions.

You’ve talked about discipline and penalties as if they’re guaranteed. Are they?

Based on the rules as written in the joint policy, the relevant precedents and the belief of numerous sources familiar with the process, the question isn’t whether Trevor Bauer will be suspended. It’s a question of how long.

The league could potentially sanction Bauer under the domestic violence or sexual assault portions of the policy.

It defines domestic violence as “a pattern of abusive behavior in any intimate relationship that is used by one partner to gain or maintain power and control over another intimate partner” and covers “physical or sexual violence, emotional and/or psychological intimidation, verbal violence, stalking, economic control, harassment, physical intimidation, or injury.” The paragraph ends: “… a single incident of abusive behavior in any intimate relationship … may subject a Player to discipline under this Policy.”

Sexual assault, the policy says, “refers to a range of behaviors, including a completed nonconsensual sex act, an attempted nonconsensual sex act, and/or nonconsensual sexual contact. Lack of consent is inferred when a person uses force, harassment, threat of force, threat of adverse personnel or disciplinary action, or other coercion, or when the victim is asleep, incapacitated, unconscious or legally incapable of consent.”

If it’s a question of how long Bauer could be suspended, how long could he be suspended?

The expectation around the sport is that the league would pursue a suspension of at least one year. Multiple sources suggested a possibility of a two-year suspension. The league has been tight-lipped about any potential discipline as its investigation remains open and, accordingly, it has not made any decisions. Even without a sense from inside the league of where it’s leaning, sources cited a confluence of factors leading them to believe this could be the longest domestic violence suspension since the implementation of the policy in August 2015.

What kinds of factors?

Based on a strict reading of the policy, the league could pursue a number of potential avenues to warrant a suspension. The California woman said Bauer punched her after choking her unconscious with her own hair. When pressed in a phone call taped by police to discuss what he’d allegedly done, Bauer, the woman said, admitted to punching her in the buttocks. Even if the woman can’t prove other allegations about Bauer, the existence of that admission could constitute “a completed nonconsensual sex act.”

An Ohio woman, as The Washington Post reported, said that Bauer punched and choked her during sex, causing bruises on her face. The Post reported that Bauer allegedly sent the woman a text that said: “I don’t feel like spending time in jail for killing someone. And that’s what would happen if I saw you again.” The woman sought a protection order in 2020 but withdrew it after Bauer’s lawyers accused her of extortion and threatened legal action. After the Post story, Bauer denied the allegations, and his legal team questioned the veracity of the alleged text.

The Ohio woman, like the California woman, has worked with MLB on its investigation, her lawyer told the Post.

Of the 13 players previously disciplined by MLB under the policy, none has been publicly accused of violations by multiple women. Although Bauer’s camp has questioned the evidence provided in both cases, the existence of photographs offers more evidence than past cases that have resulted in discipline. The graphic details of the allegations — the nurse who examined the California woman said of the bruising that allegedly resulted from Bauer punching her in the vagina: “I had never seen that before” — have from the beginning made this the most high-profile case MLB has adjudicated.

But if the DA doesn’t see evidence worthy of charges, a judge said the California woman’s initial request for a restraining order was “materially misleading” and the civil case showed the woman left out text messages that impugned her credibility, why would MLB pursue punishment?

This is a very important point: The standards in criminal and civil cases differ from that of a private business. The judge dissolving the temporary restraining order and declining to issue a permanent one does not absolve Bauer from liability within the joint policy. Neither does a prosecutor passing on pressing charges.

MLB can impose whatever sort of discipline it pleases. But it does so knowing the burden of proof ultimately is on the league.

It’s worth noting: Of the 13 players suspended by MLB under the policy, 10 were not publicly charged. Three players received suspensions while still facing criminal liability. Former Atlanta Braves infielder Hector Olivera was suspended for 82 games without pay and later was sentenced to 10 days in jail. Two others — closer Roberto Osuna, who received a 75-game suspension while a member of the Toronto Blue Jays, and San Diego Padres reliever Jose Torres, who was suspended for 100 games — were still under investigation by police. Osuna agreed to a one-year peace bond in Toronto, and Torres was sentenced to two years’ probation in Arizona.

What is the longest previous penalty under the policy?

The most recent: On March 5, MLB suspended reliever Sam Dyson for the full 2021 season — 162 regular-season games and the postseason.

What has the league said about its discipline?

At the All-Star Game, Manfred said: “I think that our policies are robust and appropriate. I think when you put them next to the policies that are present in most businesses in industry, they’re actually broader and more protective in terms of who we cover, for example. So, yes, I think the policies are appropriate in terms of the administration. Every single time that we have had an allegation, we have conducted the most thorough investigation possible. We have a department of investigations that’s significantly bigger and [has] more expertise than at any point in the history of the game. And when we have found credibility to an allegation, I think if you look at the disciplinary record, we have sent a message about what we will and will not tolerate.”

When a suspension comes, will Bauer appeal?

Brian Rothmuller/Icon Sportswire via Getty Images

All 13 of the players suspended under the policy have agreed not to appeal. Bauer might well break the streak.

Long before the allegations, Bauer’s propensity to fight was clear. He belittled people on social media. He twice went to arbitration with Cleveland, unhappy with its salary offers. He raged publicly against Manfred. His tactics won him some fans and antagonized others.

Immediately upon the California woman being granted the temporary restraining order, Bauer fought it. His team attacked her credibility. When the Post’s story ran, he tweeted a stream of text messages from the Ohio woman, trying to delegitimize her as well. Bauer habitually goes on the offensive. From the beginning, he has contended that he participated in rough consensual sex, and if Bauer were to appeal and base his argument around the league trying to litigate how players behave in the bedroom, he’d do so knowing MLB “shall have the burden of proving that the Player committed a Covered Act,” according to the policy.

Not only will Bauer come ready to scrap, multiple lawyers said, but he’ll do so with a judge already having said the California woman “was not ambiguous about wanting rough sex in the parties’ first encounter and wanting rougher sex in the second encounter.”

“This is going to be a tremendous war,” one person familiar with Bauer’s approach said. “He’s a person who needs complete and total vindication. So he’s gonna fight this to the death. Maybe his own death.”

What does an appeal look like?

If Bauer does not agree to a suspension and MLB delivers one, he would file a grievance to be judged by an arbitrator, who is hired in concert by the league and union and can be fired by either party. Bauer’s side — his lawyers as well as the MLBPA — would present its case. MLB would present its case. The arbitrator would render a decision.

Do players win appeals?

Occasionally. In August 2013, MLB suspended Alex Rodriguez for a record 211 games after he possessed and used performance-enhancing drugs over multiple years. He appealed and was allowed to play for the remainder of the season.

If the league were to suspend Bauer during the 2021 season and he were to appeal, though, he would not be allowed to play. The automatic stay for an appeal of a PED suspension does not exist in the league’s domestic violence policy.

Rodriguez’s suspension was ultimately reduced to the full 2014 season — 162 games. The most recent suspension known to be fully overturned was Ryan Braun’s positive PED test, which was nullified on account of a chain-of-custody issue. Braun later agreed to serve 65 games for his involvement with Biogenesis, the same lab that provided Rodriguez with PEDs.

A fully overturned suspension for a domestic issue is unlikely, according to sources familiar with the grievance process, but because this would be the first domestic violence case appealed, anything is possible.

Where do the Dodgers stand?

They declined comment but continue to pay his full salary.

How much are they going to have to pay him?

That depends on any suspension, of course, but Bauer’s contract structure makes for a unique case.

He signed a three-year, $102 million free-agent contract in February. It includes, sources said, a $10 million signing bonus that already has been paid out in two installments, $8 million in salary paid during the regular season and a $20 million lump-sum deferral due Nov. 30. If a suspension drops before that payment, the Dodgers could conceivably withhold it, but Bauer would challenge that and argue the money owed him was for time on administrative leave, during which he is paid like an active player.

The next two seasons are the source of even more intrigue. Bauer can opt into a $32 million salary for 2022. At the end of next year, he can opt into a $32 million salary for the 2023 season — or take a $15 million buyout and become a free agent.

When Bauer signed, it was assumed he would pitch for the Dodgers in 2021 and 2022, then use the opt-out to hit free agency, having made $85 million over two seasons. Now, depending on the result of any appeal — or the possibility that he somehow can rescue his damaged reputation — him opting into that final season might be a fait accompli.

If Bauer is suspended for an entire season, the benefit for the Dodgers goes beyond saving tens of millions of dollars in salary. For that season, Bauer will not count against the team’s competitive-balance tax payroll — saving the Dodgers from a $34 million hit on the number that determines their luxury tax penalty and perhaps allowing them to pursue higher-priced and higher-valued free agents from whom they might shy away otherwise.

Can’t the Dodgers just terminate his contract?

Not right now. The policy gives the league discretion to discipline unless Manfred transfers it to the team — and with a suspension still an option, that’s unlikely.

Once any prospective suspension expires, if there is money remaining on the contract, the Dodgers could theoretically try terminating. It just doesn’t work very often. The last successful contract termination was after Astros pitcher Shawn Chacon grabbed GM Ed Wade by the neck and threw him to the ground in 2008. An arbitrator upheld the termination, which cost Chacon around $1 million, in 2010.

Other cases of attempted terminations have wound up with players receiving overwhelming portions of their guaranteed money, even if they seemingly run afoul of the uniform player contract rules meant to hold a player accountable if he “shall fail, refuse, or neglect to conform his personal conduct to the standards of good citizenship and good sportsmanship or keep himself in first-class physical condition.”

It’s possible that if the suspension is long enough, the Dodgers wouldn’t proceed down the termination path. But if they have no intentions of Bauer ever again wearing their uniform and they’re on the hook for $32 million in 2023, the legal fight might shift from MLB vs. Bauer to Los Angeles Dodgers vs. Bauer.

How do players feel about this?

Inside the Dodgers’ clubhouse, they’ve more or less moved on. Bauer has been gone for almost two months now. They’ve resigned themselves to playing without him.

That said, there was a distinct pocket of veterans on the team who didn’t want Bauer anywhere near them again. There was also a group of players who would have welcomed Bauer back. The players were not unanimous in their judgment, but if ever there’s a point at which Bauer tries to return, those in opposition are likely to make their voices heard louder than the rest.

On other teams, there was annoyance that during the cross-examination of the California woman, Bauer’s lawyers named two other major league players with whom she had sex. “I’m not asking you this because I’m slut-shaming you at all,” said Shawn Holley, one of Bauer’s attorneys. But scores of players did not see it that way. They did not understand why the woman’s sexual partners were material to defending Bauer and believed he broke a code in having his lawyers drag other players’ names into his case.

Is Bauer going to play this year?

No.

If the DA does not make a decision on charges before the end of the season, Bauer almost certainly will remain on administrative leave.

If Bauer is charged, MLB would either extend his administrative leave or use the paid-suspension provision in the policy.

If he’s not charged, a suspension will be coming, and even if Bauer appeals, the lack of an immediate stay will prevent him from returning.

When is Bauer going to play?

Almost everyone who has been asked that question has had some derivation of the same answer: never again in MLB.

Now, that could be prisoner-of-the-moment talk. Plenty of things can change. All it takes is one team to convince itself Bauer is worth the repercussions. Five players on major league rosters today were once suspended under the policy. Never is a long time.

But the details of the allegations, Bauer’s reputation as a difficult personality, teams’ fear of public backlash and a climate in which allegations of sexual assault have far deeper repercussions than at any time before are like four walls converging on Bauer. As great of a pitcher as he has been, sources said they had a difficult time envisioning a path back into the good graces of the league and the team. Rodriguez shed his pariah status, but that came after his playing career, and PED use is often forgiven. Domestic violence allegations attach themselves to a person as if affixed by Spider Tack.

At this point, the answer to that question is far down the road. The DA’s office must make its decision. Then MLB. Then, presumably, an arbitrator. And, after all that, if Trevor Bauer still wants to pitch in the major leagues, if he still has any fight left, it might still not be enough.



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