By Michael S. Cohen
Twenty-six years ago, the Philadelphia Phillies won the World Series, and with it the adoration of an entire city. Even more importantly, the organization had the trust of their fans.
Unfortunately, a lot has changed since 1980.
But no disappointment on the field compares with the way the team has mishandled the recent situation involving its pitcher, Brett Myers.
In the early morning of June 23, 2006, Myers was charged with assaulting his wife Kim on a street in downtown Boston. The six-foot four-inch, 250-pound Myers, a former amateur boxer, was alleged to have struck his wife, who stands with an imposing five-feet four-inch, 120-pound frame, twice with his fist and, according to a witness, slapped her and then pulled her off the ground by her hair. When the police responded to the 911 call, they discovered Ms Myers crying with swelling on the left side of her face.
This event occurred only hours before the Phillies opened a weekend series with the Red Sox. By game time that night, the Myers arrest was a national story. Baseball and news commentators throughout the nation discussed not only the horror of the alleged domestic abuse, but the fact that there simply was no way the Phillies would allow Myers, the team’s ace, to make his scheduled start the following day.
The Phillies response to the situation. . . deafening silence. Conspicuous absence. Ferocious inactivity.
Myers made his scheduled start on June 24, where he was booed lustily by the 35,564 fans in attendance at Fenway Park. The team’s first statement came not from any of the team’s faceless owners, not from team President David Montgomery, not from General Manager Pat Gillick, but from Myers, following the game. How did Myers express his contrition? A sincere apology? Hardly. After his start, Myers stated, “I’m sorry it had to go public. That’s it.”
It was not until Tuesday afternoon, June 27, some one-hundred-eleven hours after Myers’ arrest and approximately seventy-five hours since Myers made his start, that team President David Montgomery finally spoke on behalf of the organization. Montgomery’s statement was reasonable, and likely would have been well received had it happened about 3 days earlier. However, by this time, now over four days since Myers had been arrested, Montgomery’s statement, and the team’s inaction, was the subject of intense, and justified, criticism.
The question remains, what should the Phillies have done? What would you as an employer have done if one of your most important contributors allegedly committed an act as vile and as public as that attributed to Myers?
At a minimum, the prudent employer would not just confront the situation, but would get out in front of it. It would not, as the Phillies did, bury its head in the sand and wait for the fans, media, and public interest groups, to excoriate it about its ineptitude in failing to deal with the situation at all.
However, prudent employers also realize they generally cannot take action against an employee based solely on an arrest. In this case, the Phillies likely would have been on the losing end of arbitration had the team suspended Myers without pay based on what was alleged. That does not mean, however, that the Phillies, or any other employer, is prevented from taking action against an employee who is arrested for something like domestic violence.
In this case, as in many others, the appropriate course of action for the Phillies would have been to suspend Myers, pending the outcome of its own internal investigation and analysis of the facts. While in most cases an employer is forbidden from taking adverse employment action based on an arrest, an organization is completely within its legal province to take action based on the facts that are revealed during its own internal investigation. Had the Phillies taken this course of action, thereby sending a clear message not only to Myers, but to its fans as well, that domestic violence simply would not be not tolerated, the team could have avoided yet another public relations debacle. Instead, the team went ostrich, hoping the whole matter would just disappear. It didn’t.
There’s an old baseball saying – play the ball, don’t let the ball play you. Rather than getting out in front of the Myers situation and taking action that was legally permissible and business savvy, the Phillies allowed the situation to play them and, as a result, added to the long list of organizational disasters that has haunted this team since 1980.
Cohen is an associate in the Employment Services Practice Group in the Philadelphia office of Wolf, Block, Schorr and Solis-Cohen LLP.
——————-
1 The first of the Phillies owners to speak was Bill Giles, who although he was in Italy when the Myers situation arose, stated “I do know what really happened was a lot less than what the public thinks happened. . . . Brett was trying to help his wife.” Following Giles’ embarrassing statement, a Phillies executive who did not want to be named pleaded, “[Giles] must have misunderstood what [team President David Montgomery] was telling him. There was no way Brett was helping Kim that night.”
