Major League Baseball has suspended Baltimore Orioles pitcher Matt Harvey for 60 games after he admitted under oath in February that he illegally used cocaine and shared Percocet with the late Tyler Skaggs. Harvey’s suspension, issued on Tuesday, is less than one-fifth the 324-game suspension MLB recently imposed on former Los Angeles Dodgers pitcher Trevor Bauer. Bauer has been accused of domestic violence, but he adamantly maintains his innocence and has not been charged with a crime.
Can these two penalties sensibly co-exist?
The short answer is yes, and that answer reflects the power accorded to commissioner Rob Manfred via collectively bargained policies.
Harvey’s testimony arose on the witness stand for the federal trial of Eric Kay, the former Dodgers communications director convicted of distributing fentanyl to Skaggs. Harvey testified with immunity, meaning he couldn’t face possible felony and misdemeanor charges related to distributing, obtaining or using drugs. Immunity also precluded him from effectively pleading the Fifth Amendment on those topics.
MLB justifies its suspension through the MLB-MLBPA Joint Drug Prevention and Treatment Program (drug policy). The policy states that a player who participates in the sale or distribution of a stimulant, drug of abuse or dehydroepiandrosterone (DHEA) faces a suspension of at least 60 games, and not more than 90 games, for a first-time offense. Harvey can appeal, though Orioles GM Mike Elias released a statement saying the team “supports” MLB’s decision. Elias added that he’s “glad that Matt now has the opportunity to put this part of his past behind him and pursue another shot with our organization after serving his suspension.”
Bauer took to Twitter to criticize Harvey’s comparatively light penalty.
“Matt Harvey,” Bauer wrote, “admitted under oath in federal court to distributing drugs—a felony in CA—among other illegal activities like taking drugs himself, in a case where a teammate died. ‘60 games’.”
Bauer’s point reflects the different ways MLB could have addressed Harvey’s misconduct. Under the MLB-MLBPA basic agreement (CBA), the commissioner can suspend a player “for just cause for conduct that is materially detrimental or materially prejudicial to the best interests of Baseball.” The commissioner has discretion to determine the length of such a suspension.
Harvey’s testimony was detrimental to MLB since it depicted a drug culture among MLB teams. Players, the testimony revealed, have dealt and used illegal drugs and opioid painkillers that the federal Controlled Substances Act classifies as Schedule II drugs. One of those players, Skaggs, died with fentanyl, oxycodone and alcohol in his system.
When MLB suspended Alex Rodriguez for 211 games in 2013 for his involvement with Biogenesis, the league referred to both the drug policy and the CBA. One important difference with Harvey, however, is that he admits to wrongdoing. An admission often leads to a lighter punishment. Rodriguez, in contrast, insisted on his innocence. He was also accused of obstructing MLB’s investigation and went so far as to sue MLB and MLBPA. Harvey (and the MLBPA) could also argue that his misconduct was exclusively related to drugs and thus should only fall under the drug policy.
Bauer’s suspension, meanwhile, is governed the Joint Domestic Violence, Sexual Assault and Child Abuse Policy (domestic violence policy), which is contained in a CBA attachment. The policy empowers Manfred to decide if a player is in violation and an appropriate sanction. In other words, when Los Angeles County District Attorney declined to charge Bauer in February, the declination didn’t immunize Bauer from Manfred punishing him. Law enforcement assessment of a possible crime, and an employer applying a workplace policy, are different undertakings, with distinct rules and varying considerations.
Matt Harvey admitted under oath in federal court to distributing drugs — a felony in CA — among other illegal activities like taking drugs himself, in a case where a teammate died. “60 games”. https://t.co/TKgeB2lW0g
— Trevor Bauer (トレバー・バウアー) (@BauerOutage) May 18, 2022
Bauer has appealed his suspension, which if it isn’t vacated or reduced will cost him about $59 million in lost pay. An arbitration hearing is expected to take place next week. Bauer can argue the suspension is unjustified and excessive, particularly since the longest previous penalty under the policy was half as long, 162 games.
Even if Bauer’s tweet arguably raises a fair point about MLB suspensions, the policies negotiated by his (and Harvey’s) union allow for those suspensions.