Likely legal fallout from latest Carlos Zambrano controversy
The Chicago Cubs placed Zambrano on the rarely-used Disqualified List
It isn't the first time Zambrano's behavior has proven a distraction for the team
It's likely that the two sides will reach an settlement before a hearing could happen
Were the Chicago Cubs legally justified in placing troubled ace Carlos Zambrano on the seldom used Disqualified List? Zambrano's zany behavior in his 11 seasons with the Cubs has ranged from dugout altercations with teammates to hurling objects onto the field, but it took its most bizarre form during last Friday night's game in Atlanta. After being ejected for throwing at the Braves' Chipper Jones, the 30-year-old Zambrano cleaned out his locker and reportedly told teammates he was retiring. In response, the Cubs placed Zambrano on the Disqualified List, which as vaguely defined in baseball's Collective Bargaining Agreement, teams may use when a player fails to "render his services to his club." While on the Disqualified List, a player forfeits his salary and is removed from the team's roster.
The Cubs say that Zambrano will remain disqualified for at least 30 days, which means he will lose at least $3 million of his $17.9 million salary. The team has not yet determined its course of action following the 30 days, though with Zambrano due $18.0 million next season in what will be the last year of a five-year, $91.5 million contract, the Cubs could continue to disqualify Zambrano or even try to void the remainder of his contract or convert it to non-guaranteed.
The Disqualified List rarely attracts notice because teams rarely use it. The New York Mets used it in 2010, when they disqualified Francisco Rodriguez after he injured his throwing hand during a fight with his girlfriend's father at the ballpark. Rodriguez would forfeit $3.1 million in salary while disqualified, though because of a settlement reached between the Players' Association and Major League Baseball, Rodriguez avoided the removal of salary guarantees in his contract. Back in 2006, the Washington Nationals threatened to disqualify Alfonso Soriano after he refused to play the outfield. The Nationals reasoned that Soriano, who had been a second baseman, was contractually obligated to play for the team as it sees fit, and thus Soriano's refusal to take the field as an outfielder meant that he failed to render services. Soriano, now a teammate of Zambrano's in Chicago, changed his mind two days later and played leftfield.
The Players' Association has already announced that it will file a grievance on behalf of Zambrano. The grievance would be heard by Shyam Das, who is employed by the Players' Association and Major League Baseball as a neutral arbitrator. Do not expect a quick resolution, as the grievance process, which involves the compiling and sharing of evidence and ultimately a contentious courtroom-like hearing, normally takes months. Absent a settlement agreement between the Players' Association and Major League Baseball, Zambrano will probably not be back on the Cubs until at least September.
Should a grievance be heard, expect the Cubs to argue that Zambrano voluntarily walked out on his team during the middle of a game and, when combined with his going-away comments to teammates and other erratic behavior, clearly signaled that he was refusing to render services. The Cubs can also portray Zambrano as a renegade employee who disregards his manager and who should not be allowed on the premises. The team has already apologized to Jones and to the Braves for Zambrano throwing at him, and Zambrano's teammates have expressed disgust, too. Therefore if Zambrano refuses to "render services" to his team in a way the team deems acceptable, the Cubs can insist that he belongs on the Disqualified List.
The Cubs could also try to void Zambrano's contract, or convert it to one that is non-guaranteed. There are two clauses in the Uniform Player Contract that, when read literally, would seem to provide the Cubs with sufficient justification to get out of its financial commitment to Zambrano. Specifically, Paragraph 7(b)(1) authorizes a team to terminate a contract if a player "fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the club's training rules," while Paragraph 7(b)(3) lets teams void a contract if a player "fails, refuses or neglects to render his services hereunder or in any manner materially breach this contract." The problem for the Cubs is that these clauses are not read literally, and as I explained in a column on the Mets failed attempt to void K-Rod's deal, the Players Association is poised to prevail over teams that try to void guaranteed contracts.
Still, the Players' Association will not go along with the Cubs' reasoning in placing Zambrano on the Disqualified List. Here are several arguments the Players' Association will likely raise in a grievance hearing:
1) While Zambrano may have cleaned out his locker and told teammates he was retiring, no evidence has surfaced that he communicated his purported retirement to his employer or to Major League Baseball. He did not speak with Cubs manager Mike Quade or general manager Jim Hendry about quitting, nor did he send an e-mail or file paperwork with the league. If all he did was clean out his locker and, while doing so, make exasperated comments to his teammates, his actions would seem more like those of an employee who had a bad day than one who was quitting for good.
2) Zambrano cleaned out his locker after he was thrown out of the game. Therefore the Players' Association will likely emphasize that Zambrano did not miss a game, and since he could not renter a game in which he was ejected, he at no time refused to render his services -- which is required for placement on the Disqualified List. In fact, within two hours of Zambrano leaving the clubhouse, his agent, Barry Praver (who earns a commission on salary payments to Zambrano and thus has a major stake in Zambrano playing), emphatically stated that Zambrano was not retiring.
3) Zambrano's alleged retirement comments were perhaps not as definitive as teammates have made them seem. Did Zambrano merely say he was thinking about retiring or taking time off, or did he say, with absolute conviction, that he was quitting? Put another way, would a reasonable person assume he was really retiring or quitting on his team, or would a reasonable person assume he was just momentarily upset and let his emotions get to him, as might happen to a lot people who get frustrated at their jobs?
4) Even if Zambrano deserves some punishment for his behavior, 30 days of no pay -- to the tune of $3 million -- can be viewed as highly excessive. In his defense, Zambrano did not endanger the safety of any of his teammates or other Cubs' employees, nor did he make any threatening comments to anyone. He also showed up for work and made his start. As a point of comparison, the Mets initially suspended Rodriguez for only two days after it learned of his fight (the team later placed Rodriguez on the disqualified list after his injury was revealed). If a fight warrants two days of no pay, why should cleaning out one's locker warrant 30 days?
5) Teams have not used the Disqualified List and Zambrano's actions, in the Players' Association's likely view, are not so egregious that they warrant its usage here. The Players' Association would be poised to take that view because of worries over precedent: other teams might cite Zambrano's disqualification in future disputes with players. Keep in mind, the Players' Association has a fiduciary duty to all players and is thus as concerned, if not more concerned, about the precedent established by the Cubs disqualifying Zambrano as it is about Zambrano.
6) Though unlikely and would require medical corroboration, the Players' Association could portray Zambrano as suffering from some type of illness or disability that helps to explain his unusual behavior in a less-blameworthy way. At the Cubs' behest, Zambrano enrolled in an anger management program last year, which suggests the Cubs are aware of Zambrano's behavioral issues.
While the Players' Association and Major League Baseball will prepare for a grievance hearing, the parties will attempt to work out a settlement long before the hearing's scheduled date. A settlement is probably the most likely outcome in this mess of a dispute, especially because it will remove from the headlines a story that serves no one's interests.
Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. Follow him on Twitter.