Next in Trevor Bauer’s MLB fight: a private judge in an unprecedented baseball case

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One of the most powerful people in Major League Baseball has been handing down judgments behind the scenes for decades, always in the middle of some of the game’s most high-stakes disputes:

In 1975, it was MLB vs. free-agency rights for players.

In 2013, it was MLB vs. superstar Alex Rodriguez.

And now it’s MLB vs. Trevor Bauer.

This person in power is the impartial arbitrator, a high-wire job in baseball that dates to 1970. It has belonged to private judges who are tasked with making rulings in contentious cases off the field, including the performance-enhancing drug suspension of Rodriguez and soon the upcoming appeal of Bauer, the Los Angeles Dodgers pitcher accused of assaulting women during sex.

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Will Bauer’s 324-game suspension from MLB be upheld, overturned or reduced?

Arbitrator Martin Scheinman in New York is set to decide unless Bauer negotiates a settlement beforehand. Scheinman is baseball’s current arbitration panel chair and is the fourth “permanent” impartial arbitrator in baseball since 2012 after the other three were fired, including his predecessor, Mark Irvings, who was ousted by the MLB commissioner’s office in 2020.

“They are difficult cases,” Irvings told Paste BN Sports, speaking of the general workload for the job. “They’re high-stakes. Both parties have high expectations. You have to be available for them, and they have the potential for high visibility. So it’s more stressful than most cases.”

In Bauer’s case, the circumstances are unprecedented. This will be the first time a player has fought and appealed a suspension under baseball’s sexual assault and domestic violence policy, established in 2015. It is by far the longest suspension under that policy, and Scheinman will have to find “just cause” to uphold it after a hearing. But can he?

Bauer was never arrested or charged and has denied wrongdoing.

“History shows Major League Baseball plays a little game here,” former MLB Players Association executive Gene Orza told Paste BN Sports. “They impose massive discipline, which gives them great public relations to show how tough they are, but with the knowledge that the arbitration process can ameliorate that massive discipline” on appeal.

MLB declined comment, citing the confidentiality required in the proceedings under the collective bargaining agreement with the players’ union.

In fairness to MLB, Orza concedes that commissioner Rob Manfred knows more about the Bauer case than has been revealed publicly and is using it to justify this suspension. But Orza also cites a long list of long MLB disciplinary suspensions that were commuted by the arbitrator, including Rodriguez's 211-game suspension getting cut to 162 games in January 2014.

In other cases, the arbitrator’s decisions have had similarly big consequences, including for the arbitrator's job security.

The arbitrator is jointly selected by MLB and the MLBPA and can be fired by either side at any time. The job involves hearing grievances over player discipline and contract issues between teams and players, not salary arbitration. Whatever the arbitrator decides, it’s likely to make at least one side unhappy, as it likely will in the Bauer case.

“Whoever the arbitrator is, if I were litigating the (Bauer) case, I wouldn’t worry that he’s going to worry about losing his job,” Orza said. “He probably knows he’s going to lose his job anyway, no matter what happens. I used to say, 'In Major League Baseball, we fired the best arbitrators in the world.' "

It’s another long list.

High stakes, high turnover

In 2012, MLB fired longtime arbitrator Shyam Das after he overturned a 50-game drug suspension for slugger Ryan Braun. Braun had tested positive for elevated testosterone but his legal team argued his testing sample was not properly handled.  

Among other decisions, Das also reduced MLB’s suspension of pitcher John Rocker from 28 to 14 days in 2000 after Rocker disparaged gay people and minorities in a magazine interview.

Das served on the job for 13 years, the longest run for one person since the position was established in 1970 Basic Agreement between players and owners. He didn’t return a message from Paste BN Sports seeking comment.

“Das’ firing sent a clear signal to future arbitrators that job security is contingent upon favorable rulings for MLB,” said a lawsuit filed by Rodriguez in 2014 against MLB and the MLBPA.

But the players union has a say, too, as it did with Das’s successor, Fredric Horowitz, when he was fired by the players in 2016. Horowitz had reduced Rodriguez’s MLB suspension, but Rodriguez called the arbitration hearing a “farce.” In his lawsuit, he took a few shots at Horowitz before deciding to drop the case. The suit stated Horowitz has been “widely described as a hardcore baseball fan.” It also accused Horowitz of “blatant partiality toward MLB.”  

Horowitz still lasted more than two more years in the job before being removed after another ruling against the players union in a separate case over an injury assignment for Dodgers player Charlie Culberson. Horowitz now participates on panels in baseball’s separate salary arbitration process. He declined comment.

“We all fully understand that there are going to be cases that for whatever reason, one party or the other can’t stand the outcome,” said Richard Bloch, who served a short stint as baseball arbitrator in the 1980s. “They simply believe it was the wrong outcome or in some cases it’s a political matter, where their clients are wondering why they would continue to retain this guy who they think didn’t understand what was going on.”

'You’re out’

After Horowitz’s firing, Irvings got the call from baseball in 2017 and went on to issue a high-profile ruling in early 2020 involving then-Chicago Cubs slugger Kris Bryant. The players union claimed Cubs management manipulated his service time to delay his free agency, but Irvings found that the union did not adequately show that Cubs executive Theo Epstein acted in bad faith. Despite that victory over the union, the MLB commissioner’s office canned Irvings later that year without an explanation.

“They decided to go in a different direction,” said Irvings, who declined to discuss specific cases. Asked why he was fired, Irvings said, “I have speculation, but I really don’t know.”

The tradition of sacking the baseball arbitrator goes back to the 1970s, when arbitrator Peter Seitz issued a ruling that essentially granted free agency for players Andy Messersmith and Dave McNally after their contracts expired with the Dodgers and Montreal Expos, respectively. Baseball owners opposed free agency for players and had clung to its reserve clause system, which essentially allowed teams to retain the rights to a player for as long as they wanted.

Seitz’s ruling was a historic moment in sports.  But immediately after it came down, baseball owners negotiator John Gaherin handed Seitz a letter of termination, according to a book by author John Helyar entitled “Lords of the Realm.”

“Peter, I’m sorry,” Gaherin said. “I love you dearly, but you’re out.”

How it works

The role of a permanent independent arbitrator has roots in the 20th century, when labor unions were more robust and arbitrators helped resolve disputes with labor in the steel and automobile industries.

In baseball, the process is part of the collective bargaining agreement between owners and players. It is intended in part to resolve disputes privately and more quickly than would happen in public court. Instead of taking place in courtroom, such hearings can take place at law offices or other meeting rooms in various cities. In the case of Rodriguez, his arbitration hearing lasted 12 days at the MLB headquarters in New York. In Bauer’s case, it’s not clear where or when that will happen.

The office of Scheinman, the current baseball arbitrator, declined comment. Scheinman has been a full-time arbitrator and mediator since 1979 and has helped decide or resolve over 20,000 disputes in a variety of industries, according to his business website.

But baseball matters do not consume all of his time after being hired for that job last year. Instead, the baseball arbitrator generally is on retainer for baseball cases for two days a month. The job involves serving on baseball’s arbitration panel of three members, which includes one representative appointed by MLB and one by the MLBPA. As the only independent arbitrator on that panel, the impartial arbitrator typically decides cases on a 2-1 vote.

That decision is considered binding, though Bauer can make a longshot bid to have it thrown out in court if he doesn’t like it, much like Rodriguez did in 2014.

In other industries, the “permanent” arbitrator has a contract to serve a set term, Irvings said. Or an arbitrator is hired on an ad hoc basis for certain cases.

“The baseball situation is fairly unique in that you’re essentially at-will, and you’re the arbitrator as long as they want you to be the arbitrator,” Irvings said.

It’s part of the job description.

“One of the things that I was taught at the outset of my career is that you decide every case as if it’s your last; otherwise it will be,” Irvings said. “But it may be, so you don’t worry about it. That’s what being the arbitrator is. You decide the case on the record and the evidence before you in the contract language. And you don’t read about how it’s received.”

In one case, in 1986, baseball arbitrator Thomas Roberts was fired by MLB in the middle of a hearing, before he got a chance to rule on whether team owners had colluded against signing free agents after the 1985 season. MLB argued the arbitrator could be fired “at any time” and wanted Roberts gone after he ruled against team owners on another matter involving drug testing players.

The players fought the firing of Roberts, leading the parties to bring back Bloch, a different arbitrator who previously served as baseball’s permanent arbitrator. This time the dispute was about whether Roberts could be fired in the middle of a hearing.

“Shortly after I was fired, I was rehired when the parties chose a successor (Roberts) and he was fired in the middle of the hearing,” Bloch said by phone recently.  “They brought me in to decide whether he should be fired. I reinstated Tom, and we always laughed about it for years because he always said I was his favorite arbitrator.”

Roberts ultimately ruled against the owners in the collusion case. The owners fired him after that.

Contributing: The Associated Press

Follow reporter Brent Schrotenboer @Schrotenboer. E-mail:bschrotenb@usatoday.com