Bauer isn’t quite off the hook at last

Trevor Bauer

He may not face prospects of prison, but Trevor Bauer—shown in the visitors’ dugout at San Francisco’s Oracle Park—isn’t quite off the whole hook yet.

Please note very carefully the language of the Los Angeles County District Attorney’s Office when announcing Trevor Bauer won’t face criminal charges in the sexual assault/domestic violence case that cost him half the 2021 season. “After a thorough review of all the available evidence,” the statement says, “including the civil restraining order proceedings, witness statements and the physical evidence, the People are unable to prove the relevant charges beyond a reasonable doubt.”

Those words mean Bauer simply won’t face a criminal prosecution, never mind that he doesn’t face the prospect of time behind bars. Those words don’t say the evidence is false as much as they say getting a criminal conviction at trial would be tougher than hitting an outside slider over the center field fence. But Bauer isn’t off the hook entirely, so far as the law and the courts are concerned.

He’s off the criminal hook, but the victim who obtained a temporary restraining order against him last June could still decide to hit back with a civil lawsuit. Such has happened in cases far more grave. Over a quarter century ago, a botched criminal murder trial didn’t prevent the family of one of O.J. Simpson’s victims from suing him and winning.

So far as Major League Baseball is concerned, Bauer could still face serious discipline from commissioner Rob Manfred, who isn’t bound by a lack of criminal charges from exercising baseball’s domestic violence policies and punishments. Neither are the Dodgers.

They may have said formally that they won’t comment publicly until MLB’s investigation is done, but it doesn’t mean they can’t cut ties with him when it’s done. They can terminate Bauer’s deal if he “fail[ed], refuse[d] or neglect[ed] 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.”

When Los Angeles County Superior Court Judge Dianna Gould-Saltman lifted the original temporary restraining order, last August, you may remember, she ruled that Bauer’s victim was “not ambiguous about wanting rough sex in [their] . . . first encounter and wanting rougher sex in the second encounter.” But the victim was anything except ambiguous when testifying in court that she drew a line, in effect, between agreed-upon rough sex and unwanted assault.

I say again that you wish only that Gould-Saltman explained how the victim was supposed to keep making her boundaries clear, or to stop Bauer from crossing them further, when she was in dreamland after Bauer choked her unconscious with her own hair in the first place.

Bauer’s legal beagles mulcted inconsistencies from her then that spoke, as former NBC Sports analyst Craig Calcaterra wrote for Cup of Coffee at the time, “to secondary and surrounding matters—how she reacted to the assault—and not at all to the assault itself . . . What Bauer’s attorneys did not do at all was discredit the central claim that he assaulted her in horrible ways.”

Maybe that makes it harder for the accuser to recover any money from him in a civil suit. Maybe that makes a prosecutor less likely to bring a criminal claim against Bauer for fear of the case being difficult. But the central truth of this entire affair—the stuff that Major League Baseball will look to regarding Bauer’s behavior, irrespective of whether charges are brought—points pretty clearly to Bauer doing exactly what his accuser said he did. Everything else is secondary.

After 12 hours of testimony, his accuser said, under oath, “I did not consent to bruises all over my body that sent me to the hospital and having that done to me while I was unconscious.” There was zero evidence presented which explained how those bruises appeared in a way that was benign or refuted the idea that the woman was unconscious when Bauer inflicted them. That, in my mind, is all that matters.

While baseball nation grappled with the Bauer ramifications, the Nationals found themselves facing a domestic violence issue when infielder Starlin Castro faced domestic violence charges but wasn’t yet suspended or even placed on “administrative leave.” Nats general manager Mike Rizzo made it as plain as a line single when talking to reporters then: “The process is the process. You asked the question, ‘Do I plan on having Starlin Castro back?’ and I said I do not plan on having him back.”

Rizzo even held a meeting with his players and laid down the law: “it’s unacceptable and it’s zero tolerance here and I don’t care how good of a player you are, it’s zero tolerance and we’re just not going to put up with it.” And they didn’t. The moment Castro was hit with a thirty-day suspension, the Nats said publicly they’d release him the moment his suspension ended. On 3 September they made good on that promise.

Nobody says the Dodgers are thrilled over Bauer’s misbehaviours, but it’s hard to forget team president Stan Kasten telling reporters what he advised manager Dave Roberts after Bauer was put on the first of his renewed administrative leaves last July: “I told him they’re going to talk about Trevor Bauer. Just say, ‘Can we please talk about foreign substances?'” That got nothing but a terrible look for the Dodgers and a public rebuke from Manfred.

The Dodgers haven’t yet said whether domestic violence is zero tolerance, they’re just not going to put up with it, they do not plan on having Bauer back, and as soon as they know whether Bauer will receive a full MLB suspension—whether it’s retroactive to time served on administrative leave or new time to serve—they’ll prepare his release for the moment the suspension officially expires.

Maybe it was easier for the Nats because Castro was almost at the end of a two-year deal when he got drydocked. Bauer is in the middle of a three-year deal, signed when the worst the Dodgers knew of him was that he was a mere misogynist. The Dodgers are on the hook for $32 million in 2022 and 2023 each, unless Bauer opts out at the end of the 2022 season and elects free agency. But Rizzo still looked far more decisive, and sounded far more emphatic, than the Dodgers have done so far.

“[Y]ou’ve heard me say it a million times, that [we prefer] you read about our guys in the Sports section and not the other sections,” Rizzo said amidst the Castro flap. “And this time we failed. I’m responsible for the players that I put on our roster and on the field.” That’s called owning it emphatically, and doing something about it decisively.

Businesses with or without public transmission can and do discipline employees often enough over off-the-job misconduct that won’t necessarily put them behind bars and isn’t half as grotesque, never mind abusive and injurious. There’s no such thing as an absolute, God-given “right” to particular employment in a particular business or profession.

A predilection for consensual rough sex is one thing. Each to his and her own. But punching an unconsious woman in the poontang and bruising her enough to require hospital attention, while she’s in no position to say yes, no, stop, or don’t-even-think-about-it, isn’t just unaligned to being a good citizen or sportsman. It’s unaligned to being human.

Bauer wins . . . nothing much, really

Trevor Bauer

Bauer in the shadows. He isn’t even close to being off the hook yet. Nor should he be.

Read very carefully. Under MLB’s formal domestic violence policy, commissioner Rob Manfred can still discipline Dodger pitcher Trevor Bauer. Even if a woman accusing him of taking consensual rough sex into non-consensual territory was denied a permanent restraining order Thursday. Even if no criminal charges end up being filed.

Bauer’s been on paid administrative leave since 2 July. The leave was extended yet again, with full agreement between MLB and the Major League Baseball Players Association, this time through 27 August. With Pasadena police still investigating—criminal charges remain a distinct possibility—and Manfred’s office doing likewise, it’s fair to assume Bauer won’t pitch again this season.

Los Angeles Superior Court Judge Dianna Gould-Saltman agreed that “injuries as shown in the photographs” the woman’s legal team provided of her aftermath from Bauer encounters “are terrible.” The judge went on: “If she set limits and he exceeded them, this case would’ve been clear. But she set limits without considering all the consequences, and respondent did not exceed limits that the petitioner set.”

I seem to remember the victim saying it was one thing to have a mutually brutal round of rough sex with Bauer but it was something else again for him to keep it up when she was out cold. Unless I’m very wrong, when you’re out cold or sound asleep you can’t exactly say “yes” to something, anything, competently or with knowledge. You don’t need to be a legal beagle to know that.

At the moment,” tweeted Bill Shaikin of the Los Angeles Times, “MLB and police investigations continue, with focus not on whether Bauer should be restrained from contacting accuser going forward, but on whether previous conduct alleged by accuser merits criminal charges and/or MLB suspension.”

Sheryl Ring, an attorney who devotes a considerable amount of her time to watching and analysing baseball, writes that—pace his social media sycophancy crowing that he beat the rap and should be back on the mound post haste—the only thing Bauer really won Thursday was the right not to be blocked from contacting the lady in question in the future.

He’s not even close to being off the hook for what he did to her in the past. Yet.

Ring agrees the lady and her legal team tripped over themselves a few times during the hearings, particularly over the consent issue. “You can lose a case on an inaccurate statement in a sworn pleading, even on a collateral issue, and that clearly weighed heavily on the judge here,” she writes. “Finally, they elected not to have their expert witness testify on the issue of consent even after briefing the issue and winning that briefing, which I think was also a mistake.”

But Gould-Saltman also made a crucial mistake in her ruling, Ring continues:

Right after saying at the beginning of her ruling that future harm was not necessary to the issuance of a restraining order, she talked about how there was no need for a restraining order because there was no risk of future harm. She also, in my opinion, incorrectly applied the law of consent when it came to this line:

If she set limits and he exceeded them, this case would’ve been clear. But she set limits without considering all the consequences, and respondent did not exceed limits that the petitioner set.

Given a phone call was played in which Bauer admitted to punching the petitioner whilst she was unconscious, what the court stated is an incorrect statement of the law. You cannot give consent to anything when unconscious. In my opinion, that’s reversible error and grounds for a potentially meritorious appeal.

If Gould-Saltman could rule the lady didn’t make her boundaries “clear,” perhaps the judge would like to explain how she was supposed to keep making them clear, or to stop Bauer from crossing the line further when she was in dreamland—when she was in dreamland in fact after Bauer choked her unconscious with her own hair—while he crossed that line.

One of the worst-kept secrets throughout this entire disgrace is that there may be no one in a Dodger uniform who wants Bauer back with the team no matter how well he pitched before 2 July. The Dodgers themselves have legal recourse to rid themselves of him.

The standard, uniform player’s contract includes 7(b)1: they can terminate Bauer’s deal if he “fail[s], refuse[s] or neglect[s] 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.”

Paragraph 7(b)1 isn’t exactly an obscure or a previously-unapplied contract clause. When pitcher Denny Neagle got caught soliciting a woman for oral sex in 2004, the Rockies invoked the clause to terminate his five-year, $51 million deal. (Neagle missed pitching in 2004 due to ligament and elbow injuries.)

The players association filed a grievance in that case and it was settled in due course with the Rockies paying about 7/8ths of Neagle’s 2004 salary. Neagle’s marriage ended over the incident; he signed a deal with Tampa Bay for 2005 but didn’t pitch because of elbow issues and subsequently retired.

The Dodgers stand on far more solid ground if they elect to terminate Bauer’s deal with them. If they want to invoke 7(b)1 and cite MLB’s domestic violence policy, all they have to do, as Ring points out, is ask MLB’s permission—and if it’s permission denied, the Dodgers can do it anyway.

A man who likes his sex on the rough side and a lady who wants it likewise from and with him are merely kinky, in politest possible terms. A man who’d choke her out cold, then take her from the rear and punch her between the legs, is beyond mere depravity.

“This is, by far, the most serious case yet for MLB of an alleged violator, and it’s not close,” Ring writes.

No other person was accused of multiple violations against multiple victims. No other case . . . had this much court evidence. No other alleged violator so dramatically attacked their accusers in the press, either. The longest suspensions ever meted out for violations of the domestic violence policy were to Sam Dyson (a full season) and Jose Torres (100 games); as horrifying as the allegations were in those cases, this is somehow worse than both of those cases, and it’s not close. Notably, in none of the other domestic violence cases were multiple orders of protection sought by multiple people against the same player.

The last alludes to the revelation from the Washington Post, last week, that an Ohio woman also sought a restraining order against Bauer in 2020. She, too, accused Bauer of punching and choking her without consent during sex. Some winner.

Bauer prevailed regarding the restraining order in California, Ring writes, “by arguing that he is so dangerous that a woman who agrees to have sex with him assumes the risk of being harmed when doing so. And he made a great spectacle of dragging through the mud the woman he admits to having punched whilst she was unconscious.” Some model citizen.

Ring may not be the only legal-minded, legal-oriented baseball analyst to think it’s not out of the question that Manfred might consider suspending Bauer for two years. Effectively, that would wipe him out as a Dodger, since his current deal has two more seasons to go.

Practically, it might end Bauer’s life as a major league pitcher, period. But that would assume no other team would even think about plighting its troth to a man for whom women are little more than playthings with targets on their lady parts. We’ve known only too well what happens when you [ass][u][me].

“The inconsistencies Bauer’s attorneys elicited from the accuser spoke to secondary and surrounding matters — how she reacted to the assault — and not at all to the assault itself,” writes Craig Calcaterra, formerly an NBC Sports baseball analyst now writing the newsletter Cup of Coffee.

The text messages show a person who is at turns confused, angry, sad, depressed, or desiring vengeance, but those are all understandable feelings for a person in her situation to have. What Bauer’s attorneys did not do at all was discredit the central claim that he assaulted her in horrible ways.

. . . [T]he central truth of this entire affair — the stuff that Major League Baseball will look to regarding Bauer’s behavior, irrespective of whether [criminal] charges are brought — points pretty clearly to Bauer doing exactly what his accuser said he did. Everything else is secondary.

After 12 hours of testimony, his accuser said, under oath, “I did not consent to bruises all over my body that sent me to the hospital and having that done to me while I was unconscious.” There was zero evidence presented which explained how those bruises appeared in a way that was benign or refuted the idea that the woman was unconscious when Bauer inflicted them. That, in my mind, is all that matters.

Small wonder Brewers pitcher Brett Anderson could and did tweet, “Crazy to think that I could never get anyone out ever again and still feel better about my career than Trevor Bauer’s.” Indeed it is better to surrender six runs in three and a third innings than to be known for abusing women, violently or otherwise.

Beyond mere misogyny

Trevor Bauer

Somehow it was easier on the insides when Trevor Bauer was a mere misogynist.

Before Trevor Bauer signed with the Dodgers in February, there were signs enough that the Mets might bring him aboard. And alarms enough that Bauer’s penchant for social media misogyny might require extraordinary pre-emptive strikes to contain potential fallout.

That was a month after the Mets fired general manager Jared Porter over sexual texts and images he sent a female reporter while working for the Cubs in 2016. And, around the time former Mets manager Mickey Callaway got suspended—and, eventually, fired as the Angels pitching coach—over several years’ unwanted pursuit of women around baseball.

A New York Post baseball writer, Joel Sherman, thought the last thing the Mets should consider under those circumstances was signing a pitcher to whom mere misogyny seemed second nature to anything longer than a single-year deal:

Bauer’s behavior does not rise near the malfeasance that Porter copped to and is alleged against Callaway. But Sandy Alderson hired both Porter and Callaway. He said in the aftermath of both disturbing revelations that had he known prior, he would not have hired Porter or Callaway. He knows what he knows about Bauer. Now. Today.

The Mets lost out to the Dodgers in the Bauer hunt. In letting Bauer become the Dodgers’ signing splash and migraine, the Mets may not have dodged just a bullet but a nuclear warhead.

On Monday, a 27-year-old woman filed a domestic violence restraining order against the 30-year-old righthander with pitching smarts to burn and a paleozoic personality to match. The Athletic‘s Brittany Ghiroli and Katie Strang got a look at the details inside the 67-page filing.

They almost make the sadomasochistic1963 novel whose title later became the name of a legendary rock band, The Velvet Underground, resemble The Enchanted Cottage. I can only imagine the sickenings to their stomachs Ghiroli and Strang felt.

“The alleged assaults described by the woman, which are extremely graphic in nature, happened during what she said began as consensual sexual encounters between the two,” Ghiroli and Strang wrote Wednesday.

According to the woman’s declaration attached to the request and obtained by The Athletic, she suffered injuries as a result of the second encounter, including two black eyes, a bloodied swollen lip, significant bruising and scratching to one side of her face. In the woman’s declaration, signed under penalty of perjury of California state laws, she said that her medical notes state that she had “significant head and facial trauma” and that there were signs of basilar skull fracture.

She also said that, in one of those incidents, while unconscious, Bauer penetrated her anally, which she did not consent to in advance.

“I agreed to have consensual sex; however, I did not agree or consent to what he did next,” she says. “I did not agree to be sexually assaulted.”

The two Athletic reporters reached out to Bauer’s side and got no comment beyond a statement from Bauer’s agent, Jon Fetterolf. The statement says, essentially, that Bauer and the woman began “a brief and wholly consensual sexual relationship” which she began, meeting twice, with Bauer leaving quietly but the two continuing to message in “friendly and flirtatious banter.”

But Fetterolf also acknowledged she sent Bauer photographs accompanied by a note that she sought medical treatment for a concussion, to which Bauer responded “with concern and confusion” while the woman was “neither angry nor accusatory.”

Mr. Bauer and [the woman] have not corresponded in over a month and have not seen each other in over six weeks. Her basis for filing a protection order is nonexistent, fraudulent, and deliberately omits key facts, information, and her own relevant communications. Any allegations that the pair’s encounters were not 100% consensual are baseless, defamatory, and will be refuted to the fullest extent of the law.

One of the lady’s own attorneys, Bryan Freedman, had a statement of his own to share with Ghiroli and Strang:

Without going into detail for the benefit of both my client and Mr. Bauer, the pictures evidencing the unconsented abuse do not lie. Any suggestion that she was not the victim of assault is not only false and defamatory but, in fact, perpetuates the abuse. Our client truly wants Mr. Bauer to engage in a medically appropriate therapeutic process where he can receive the treatment he needs to never act this way again.

“If he is willing to meaningfully participate in a process directed by appropriate professionals,” Freedman continued, “it will go a long way toward allowing her to feel safe and resolving this matter. But, regardless, she cannot allow this to happen unknowingly to anyone else.”

The woman accuses Bauer of choking her just enough into unconsciousness. She said in the filing that she awoke disoriented but also to him trying to have rough anal sex with her, “which I had never communicated that I wanted, nor did I consent,” and that the morning after he made a little light of the entire thing before he left an hour later.

The pair continued messaging each other, though. They met again in mid-May. That time, the woman’s filing says, instead of trying a little rough sex after choking her unconscious Bauer basically beat her head in for her—and, after she was fully conscious, told her she was safe and he “would never do those things to you if it wasn’t sexually.”

“As part of the request to the court,” Ghiroli and Strang wrote, “the woman also provided text messages and screenshots of voicemails she said Bauer sent to her inquiring about her well being and checking in with her to see what he could do; in one message, Bauer offers to deliver groceries to her.” What a guy.

The filing also mentions the woman went for two medical exams off that second “encounter,” including “rapid CT scans” for face, neck, and brain. She also met San Diego police detectives, downplayed the whole thing as just “rough sex,” and didn’t drop Bauer’s name then for fear of public repercussion.

“I was afraid what Trevor would do if he found out,” Ghiroli and Strang quote her filing. “I remain afraid that Trevor will find me and hurt me for going to the hospital.” They also quote from a conversation between herself and Bauer under the Pasadena Police Department’s direction: “I said, ‘Thank you for acknowledging what you did to me.’ Trevor acknowledged it and asked how we could move forward and asked if he could still reach out.”

The Pasadena PD is still investigating. Another attorney for the lady, Marc Garelick, said in a statement he and his client both expect criminal action against Bauer. MLB is also investigating and may sanction Bauer under the sport’s domestic violence policy.

“Let the balance between Bauer’s talent and his headaches be on the Dodgers’ heads,” I wrote when Bauer signed that three-year, $102 million deal with them. “The Dodgers may be deep enough that Bauer’s headaches wouldn’t make a huge impact, but they could leave the Dodgers with as many migraines off the field as their presence on it will leave for the rest the National League West, at minimum.”

If all Bauer gives the Dodgers now is a mere migraine, it would be a substantial improvement.

Wild rough sex is one thing. Forgive me if I have an impossible time believing that battering a woman like her head is a boxing gym speed bag, or giving her a back-door slider while she’s out cold, is any kind of erotic for either partner.

“One of the last text messages I sent him,” the lady’s filing said, “was, ‘I appreciate all of your offers to help, but the best way you can help me is to never do that to anyone else ever again.’ To this, Trevor responded, ‘I would never do anything to hurt anyone. That includes you’.”

What a guy.