By Charli Grayson*
On October 19, 2019, the Houston Astros clinched the American League Championship and advanced to the World Series. The major news following this big win, however, was not about the game at all; rather, the biggest story was about the conduct of the Assistant General Manager, Brandon Taubman, in the locker room following the game. In an article penned by Sports Illustrated writer, Stephanie Apstein, it was reported that Taubman repeatedly shouted at three female reporters “Thank God we got Osuna! I’m so f***ing glad we got Osuna!” Taubman’s remarks refer to the Astros’ acquisition of Roberto Osuna from July of 2018. However, in the October 19 game, Osuna was not a star player, giving up a two-run homerun in the ninth inning. Rather, Taubman’s comments seemed to reference the reason the Astros were able to so easily pick up Osuna, one of the best closers at the time.
Osuna was traded for a low price to the Astros from the Toronto Blue Jays after he allegedly assaulted the mother of his child in May of 2018. Charges were dropped after the woman returned to Mexico and refused to testify. Osuna was suspended by Major League Baseball (“MLB”) for seventy-five games. In order to generate some goodwill following the acquisition, the Astros donated over two hundred thousand dollars to various shelters and emphasized their “zero-tolerance policy” towards domestic violence.
Following Apstein’s article, the Astros immediately released a statement accusing her of fabricating the story. Sports Illustrated came out and said that it completely stood behind Apstein and noted that her story was corroborated by both the Houston Chronicle and Yahoo! Sports. The Chronicle even added that Taubman was standing with a few men and holding a cigar at the time he shouted at the female reporters, who were about eight feet away and visibly shaken. Notably, the Astros’ statement did not deny Taubman’s comments but rather noted that he was “supporting the player during a difficult time.”
On October 22, Taubman did release a statement stating he was “sorry if anyone was offended by [his] actions.” Astros owner, Jim Crane, released a statement as well emphasizing that mandatory training regarding domestic violence is required annually from all employees. On this same day, the MLB chose to investigate the situation by interviewing those involved. By October 24, the Astros fired Brandon Taubman after finding that his comments were in fact directed at one or more of the reporters.
Under the MLB’s Constitution, the Commissioner has full authority to investigate upon his own initiative any activity that is “alleged or suspected to be not in the best interest of . . . [b]aseball.” Taubman’s clear taunt at the female reporters is harmful to the League’s image. Also vested in the Commissioner through the Major League Constitution is the power to decide what “preventative, remedial, or punitive action” to take against an individual or a club. This means that Manfred, the current MLB Commissioner, could choose to fine Taubman, suspend Taubman, or even fine the Astros. Additionally, Manfred could choose to fine the Astros organization due to improper supervision of Taubman or even because of the statement released by the organization accusing Apstein of fabricating the story. Even though the Astros have fired Taubman, it is still very possible, and likely, according to ESPN’s sources, that Taubman will be suspended by the League if he gets another job in baseball. Finally, the MLB Constitution does provide that the Commissioner has the authority to “pursue legal remedies” or propose remedial legislation.
Another way in which the MLB can punish those involved in this situation is through the MLB’s Workplace Code of Conduct. This code states that “harassment . . . [is] against the MLB’s values and will not be tolerated anywhere in the Major or Minor Leagues.” Within the code, Taubman’s inappropriate conduct could arguably be considered bullying, which is defined as “abusive or intimidating behavior” based on a variety of factors including gender or gender norms.
Manfred can also fine or suspend Taubman under the MLB’s Regulation for Club/Media Relations. This agreement, released in 2016, prohibits employees from discriminating against any media members. Additionally, club employees are prohibited from directing threats to the media. Violations for players or executives are punishable by fine or suspension. The Astros can also be punished under this agreement, should it be found that Taubman’s comments created a hostile work environment.
Finally, Taubman could easily be punished for his inappropriate comments through the MLB’s Joint Domestic Violence, Sexual Assault and Child Abuse Policy. This policy “takes an absolute stand against domestic violence” and “focuses on education and prevention.” Domestic violence is defined as “emotional and/or psychological intimidation, verbal violence,… [or] harassment.” It has been argued that Taubman’s comments could be perceived as intimidation or harassment. While the policy was originally worded as applying to players, the MLB did ensure that the policy applied to everyone employed at the various clubs. In fact, should Taubman be fined or suspended under this policy he would not be the first executive to be punished for violations. The CEO of the San Francisco Giants was suspended without pay and required to go to counseling after he grabbed his wife’s arm in public and she fell. If the MLB found Taubman’s comments to be harassing or intimidating, Taubman could face suspension from the League; this suspension would only be enforced should he end up working for another baseball team. The Astros might face punishment, and most likely fines, if it is thought that their conduct has undermined the MLB’s continued commitment to taking a stand against domestic violence.
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2021, Villanova University Charles Widger School of Law
 See Dayn Perry, Astros win AL pennant: Eight things to know about Houston’s second World Series trip in three seasons, CBS Sports (Oct. 20, 2019), https://www.cbssports.com/mlb/news/astros-win-al-pennant-eight-things-to-know-about-houstons-second-world-series-trip-in-three-seasons/ (noting Astros win over New York Yankees in American League and projecting 2019 World Series win).
 See Stephanie Apstein, Astros Staffer’s Outburst at Female Reporters Illustrates MLB’s Forgive-and-Forget Attitude Toward Domestic Violence, Sports Illustrated (Oct. 22, 2019), https://www.si.com/mlb/2019/10/22/houston-astros-roberto-osuna-suspension (explaining debacle in Astros locker room following American League pennant win).
 See id. (detailing comments made by Taubman towards three female reporters, one of whom was wearing domestic violence awareness bracelet).
 See Michael Shapiro, Astros Acquiring Roberto Osuna From Blue Jays For Ken Giles, Sports Illustrated (July 30, 2018), https://www.si.com/mlb/2018/07/30/roberto-osuna-trade-astros-blue-jays-ken-giles-deal (discussing Astros’ trade of closer Ken Giles and two minor league pitchers for Roberto Osuna).
 See Apstein, supra note 2 (acknowledging Osuna’s less than stellar performance at end of Astros game on October 19th).
 See id. (arguing Taubman yelled comments at female reporters referencing Osuna’s history of domestic violence).
 See id. (recounting facts leading up to Houston Astros’ acquisition of closer Roberto Osuna); see also ESPN News Services, Astros trade for suspended Blue Jays reliever Roberto Osuna, ESPN (July 30, 2018), https://www.espn.com/mlb/story/_/id/24236541/houston-astros-acquire-reliever-roberto-osuna-trade-toronto-blue-jays (explaining trade with Blue Jays for Osuna in exchange for closer Ken Giles and two minor league pitchers).
 See Apstein, supra note 2 (noting domestic violence charges against Osuna were dropped by prosecutors); see also A.J. Perez, Astros reliever Roberto Osuna won’t be tried for domestic violence arrest as part of deal with prosecutors, USA Today (Sept. 25, 2018), https://www.usatoday.com/story/sports/mlb/2018/09/25/roberto-osuna-domestic-abuse-case/1158857002/ (stating prosecutors informed court that alleged victim refused to return to Canada to pursue case).
 See Apstein, supra note 2 (recounting Osuna’s seventy-five game suspension from MLB, which did not include post season); see also Scott Boeck, Astros acquire closer Roberto Osuna, who’s suspended for domestic violence violation, USA Today (July 30, 2018), https://www.usatoday.com/story/sports/mlb/2018/07/30/roberto-osuna-trade-astros-blue-jays-domestic-violence/867529002/ (acknowledging Osuna’s lengthy suspension for violating MLB’s domestic violence policy).
 See Apstein, supra note 2 (suggesting Astros attempted to show that they took domestic violence seriously after picking up Osuna due to his alleged domestic violence).
 See Sports Illustrated Staff, Sports Illustrated Issues Statement After Astros Question SI’s Reporting, Sports Illustrated (Oct. 22, 2019), https://www.si.com/mlb/2019/10/22/sports-illustrated-statement-response-astros-story (stating Astros’ statement called article “misleading and completely irresponsible” and said story was fabricated).
 See id. (supporting Apstein and her article by noting that two other media outlets corroborated story); see also Chandler Rome, Astros executive Brandon Taubman under fire for Osuna comments, Houston Chronicle (Oct. 21, 2019), https://www.houstonchronicle.com/sports/astros/article/Astros-executive-Brandon-Taubman-under-fire-for-14551952.php (noting two Chronicle reporters witnessed Taubman’s conduct and corroborated Apstein’s article); see also Jason Owens, Astros fire assistant GM Brandon Taubman for ‘inappropriate comments’, Yahoo Sports (Oct. 24, 2019), https://sports.yahoo.com/astros-fire-assistant-gm-brandon-taubman-in-aftermath-of-clubhouse-controversy-203829356.html (stating Yahoo reporter Hannah Keyser was in clubhouse and confirmed events as described by Apstein).
 See Laura Wagner, Astros Drop Failed Smear Campaign Against Sports Illustrated, MLB Picks It Up, Deadspin (Oct. 22, 2019), https://deadspin.com/astros-drop-failed-smear-campaign-against-sports-illust-1839269728 (explaining corroborating story detailed by Houston Chronicle); see also Rome, supra note 12 (noting conduct in clubhouse as witnessed by two Chronicle reporters).
 Sports Illustrated Staff, supra note 11 (observing statement released by Astros did not deny that Taubman made comments about Osuna).
 Wagner, supra note 13 (detailing apology released by Brandon Taubman); see also Adam Wells, Astros’ Brandon Taubman Issues Statement on Rant Directed at Female Reporters, Bleacher Report (Oct. 22, 2019), https://bleacherreport.com/articles/2859335-astros-brandon-taubman-issues-statement-on-rant-directed-at-female-reporters (publishing statement made by Taubman originally released via Twitter by Bob Nightengale).
 See Wagner, supra note 13 (noting Jim Crane’s statement focused on training on domestic violence that is required of Astros employees); see also Jim Crane, Astros Statement, MLB (Oct. 22, 2019), https://www.mlb.com/press-release/press-release-10-22-19-astros-statements (releasing Crane’s statement along with Taubman’s).
 See Dan Gartland, MLB to Investigate Astros Executive’s Comments on Roberto Osuna, Sports Illustrated (Oct. 22, 2019), https://www.si.com/mlb/2019/10/22/houston-astros-brandon-taubman-mlb-investigation (announcing Major League Baseball will launch investigation into Taubman comments).
 See Jenna West, Astros Fire Assistant GM Brandon Taubman After Investigation Into Outburst At Female Reporters, Sports Illustrated (Oct. 24, 2019), https://www.si.com/mlb/2019/10/24/brandon-taubman-fired-astros (reporting Assistant General Manager Brandon Taubman was fired from Houston Astros).
 Major League Baseball, Major League Constitution, University of New Hampshire Franklin Pierce School of Law, https://ipmall.law.unh.edu/sites/default/files/hosted_resources/SportsEntLaw_Institute/League%20Constitutions%20&%20Bylaws/MLConsititutionJune2005Update.pdf (last visited Nov. 1, 2019) (stating terms and conditions of Major League Constitution); see also Gartland, supra note 17 (recognizing that Manfred, MLB Commissioner, has power to investigate any activity that could be against baseball’s best interests).
 See Gartland, supra note 17 (explaining Taubman’s taunting comments reflect poorly on League’s image and could affect business as well).
 Major League Baseball, supra note 19 (granting in MLB Commissioner power to decide what punishment to enforce against club or individual).
 See Gartland, supra note 17 (listing possible repercussions to either Taubman or Astros organization for inappropriate comments made).
 See id. (hypothesizing theories under which Commissioner could impose punishments on Houston Astros).
 See Jeff Passan, Inside the Astros culture that bred Brandon Taubman’s comments, ESPN (Oct. 25, 2019) https://www.espn.com/mlb/story/_/id/27926780/the-houston-astros-front-office-missteps-began-long-brandon-taubman-comments (reporting sources have indicated that Taubman will receive suspension from MLB that will go into effect should he ever take another job in baseball).
 Major League Baseball, supra note 19 (vesting in Commission authority to pursue legal action or bring about remedial legislation).
 See Gartland, supra note 17 (detailing MLB Workplace Code of Conduct as governance feature within League).
 Major League Baseball, Workplace Code of Conduct: Harassment & Discrimination, MLB, http://content.mlb.com/documents/0/8/0/296982080/Workplace_Code_of_Conduct.pdf (last visited Nov. 1, 2019) (creating MLB’s zero-tolerance policy for harassment).
 Gartland, supra note 17 (finding that Taubman’s conduct could potentially be punished through MLB’s Workplace Code of Conduct); see also Major League Baseball, supra note 27 (defining “bullying” under MLB’s Workplace Code of Conduct).
 See Gartland, supra note 17 (acknowledging MLB’s Regulation for Club/Media Relations as another avenue for Manfred to enforce punishment against Taubman).
 See id. (stating Regulations for Club/Media Relations call for absolute prohibition on discrimination or intimidation towards reporters and media); see also Major League Baseball, 2016 Regular Season Club/Media Regulations, MLB, http://mlb.mlb.com/documents/2/5/6/174633256/2016MediaGuidelines_dh5n8alt.pdf (last visited Nov. 1, 2019) (laying out guidelines for conduct between clubs and media).
 See Gartland, supra note 17 (observing threats directed toward members of media are specifically prohibited via regulation); see also Major League Baseball, supra note 30 (outlining conduct between MLB clubs and media that is disallowed)
 See Gartland, supra note 17 (detailing punishments available under regulation as being fines or suspension); see also Major League Baseball, supra note 30 (imposing fines and/or suspension for those in violation of regulation).
 See Gartland, supra note 17 (finding MLB could punish Astros for creation of hostile work environment).
 See id. (noting MLB and MBLPA’s joint policy on domestic violence is applicable to Taubman’s comments and therefore can be invoked).
 Major League Baseball, Joint Domestic Violence, Sexual Assault and Child Abuse Policy, MLB, http://content.mlb.com/documents/2/9/2/296982292/Major_League_Player_Joint_DV_SA_CA_Policy_English_2018.pdf (last visited Nov. 1, 2019) (announcing MLB’s joint policy that is meant to take resolute stand against domestic violence in baseball).
 Id. (providing definition for domestic violence).
 See Gartland, supra note 17 (arguing that Taubman’s inappropriate remarks towards female reporters could be viewed as intimidation).
 See id. (recognizing that original language of policy was directed towards players but later was broadened to include everyone employed within MLB).
 See id. (discussing suspension of San Francisco Giants’ CEO Larry Baer after “jostling” his wife).
 See AJ Neuharth-Keusch and Gabe Lacques, Video shows San Francisco Giants CEO Larry Baer involved in physical altercation with wife, USA Today (Mar. 1, 2019), https://www.usatoday.com/story/sports/mlb/giants/2019/03/01/larry-baer-san-francisco-giants-ceo-has-physical-altercation-wife/3032252002/ (describing altercation between Baer and his wife over cell phone that lead MLB to investigate Baer); see also Gartland, supra note 17 (recounting facts surrounding suspension of CEO Larry Baer).
 See Gartland, supra note 17 (noting that Taubman could be punished in form of suspension under Joint Domestic Violence, Sexual Assault and Child Abuse Policy).
 See id. (observing that if Astros are perceived as undermining MLB’s commitment to prevention of domestic violence, then MLB could impose fines).