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Lessons of Sir Sidney Ponson for the Phillies

As an organization, the Phillies are not strangers to run-ins with the law, nor to players who bring unwelcome attention to the organization by their off-field behavior. From Ed Delahanty over a century ago to Jason Michaels throwing hands with a cop earlier this summer, the embarrassments and entanglements stemming from these incidents could fill an entire chapter in the franchise's long book of woe.

So it might have been of more than passing interest in south Philadelphia when the Baltimore Orioles released pitcher Sidney Ponson on September 1 with the intention of terminating his contract under the "morals clause" in the standard MLB contract.

On August 25, 2005, Ponson was arrested and charged with DUI after he was stopped for tailgating, given a field sobriety test and charged with driving under the influence and driving while impaired. At the station, he refused a breath test, which carries an automatic 120-day suspension of his license for a first offense.

In January, Ponson was charged with driving under the influence in Florida. That arrest came weeks after he spent 11 days in an Aruban jail for a Christmas Day fight at a beach.

According to the standard player's contract, a club may terminate a contract "if the Player shall at any time fail, refuse or neglect 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."

Here, the Orioles are probably claiming that 1) Ponson's repeated arrests violate the "good citizenship" clause and 2) Ponson's failure to control his weight violates the "physical condition" clause of the player contract.

If the Orioles are successful in terminating Ponson's contract, Ponson would only be "entitled to termination pay . . . set forth in Article IX of the Basic Agreement . . . [and] an amount equal to the reasonable traveling expenses of the Player, including first-class jet air fare and meals . . . to his home city." Termination pay is discussed in Article IX of the CBA, but it only discusses termination for poor performance or skill level. Termination pay in those cases is either 30 or 45 days salary, depending on the timing of the contract termination. There is no guideline for termination pay for violation of the morals clause. Given the CBA's silence on the subject and the integration clause located in Article XXVII of the CBA, it is likely that Ponson would be granted no termination pay and would receive a one way plane ticket to Aruba should the Orioles be successful.

The overweight and underachieving Ponson is due $10 million next season, and has been a walking indictment of the Baltimore front office ever since the team re-signed the then-free agent to a long-term deal after the 2003 season. As you'd expect, the players' union filed a grievance, arguing that Ponson should be paid the $11 million remaining on the contract ($1 for the rest of this year and $10 million for 2006). The case will likely be heard by MLB's arbitrator, Shyam Das.

Under the MLB CBA, an arbitrator hears all disputes between players and management. How is this case likely to play out?

American legal tradition calls for the courts to observe the principle of stare decisis. This means that a court will follow established president when making a ruling in a case. If the facts and law are the same or similar enough to previous cases, then the court will follow that previous ruling.

Here, there is not much precedent for Mr. Das to apply stare decisis. His decision will set the precedent by which other decisions will follow on similar cases--which is why the Phillies, and the other 28 big-league clubs, will be watching almost as closely as the Orioles themselves.

Of course, the Ponson case is far from the first time a team has tried to cut ties with a player. In recent years, the New York Yankees successfully terminated third baseman Aaron Boone's contract just months after his home run won the 2003 ALCS over Boston, owing him only termination pay. A couple years earlier, the Colorado Rockies tried to terminate pitcher Denny Neagle's contract, but settled before adjudicating the dispute.

The difference between the cases is the reason for termination. Aaron Boone injured himself while playing basketball, a physical activity specifically prohibited under his contract. Boone's case also had a clear precedent: the Atlanta Braves' termination of Ron Gant's contract in 1994, after he broke his leg while riding a dirt bike. Neagle was arrested for solicitation of prostitution, an activity not specifically prohibited under a standard player contract. Therefore--like Ponson's case-- it falls under the morals clause. Neagle's case was settled prior to a final judgment, which leaves the Ponson case without any other president.

Which leads to the question, how will Mr. Das rule on this matter?

As an arbitrator, Das has much discretion in his decisions. He does not have to observe stare decisis and, in fact, may use any and all factors to reach his decision. He is not limited by the rules of evidence, as a court would be. This is one of the purported advantages of using an arbitrator rather than a court to settle disputes. Another justification for arbitration is that the decision of an arbitrator is final. There is no appeals process and courts will almost never reverse an arbitrator's decision. The parties can be satisfied that whatever decision the arbitrator reaches will be the final judgment.

If they do take the matter to arbitration, Ponson and the MLBPA will do so against the legal equivalent of Barry Bonds--on the field, that is. Orioles owner Peter Angelos built his fortune as a very successful trial attorney. His specialty was representing asbestos victims as a plaintiff's side attorney and winning large judgments for them for their injuries. His firm reportedly earned over $100 million in class action asbestos work alone. He has also branched out and sued tobacco companies, drug manufacturers, lead paint makers, and cell phone companies. The cell phone industry especially is worried over suits Angelos is bringing on behalf of people who claim to have developed brain cancer from using handheld cell phones. Though similar suits have failed in the past, the industry has never faced a lawyer with the expertise, financial resources, and political firepower of a Peter Angelos.

Given his expertise, it is probable that Angelos examined all the legal angles before deciding to terminate. The most on point case would be that of Denny Neagle. After his arrest, the Colorado Rockies terminated Neagle's contract with about $19 million left on it. Neagle and the MLBPA subsequently filed a grievance against the Rockies. Before the matter could be heard by an arbitrator, the Rockies and Neagle settled the matter for $16 million. Since the settlement was far closer to $19 million than $0, the sides probably figured Neagle had a very good chance of winning the case.

One reason Angelos and the O's might expect a better outcome than Colorado's is that while Neagle's incident was his first brush with the law, Ponson has had previous DUIs. The Orioles may have warned Ponson that after his first two arrests, any subsequent violations would lead to a termination of his contract. Ponson would have had notice from the Orioles whereas Neagle could not have had the same notice from the Rockies.

The outcome of this case is far from predictable. The MLBPA has had a long history of defeating baseball management in legal proceedings and quasi-legal proceedings. However, Angelos is a very successful litigator who has probably studied the issue extensively and figures he has a likelihood of succeeding. Alternately, the Orioles might have been planning to release Ponson for poor performance anyway and this was a no-lose proposition that they're trying.

One thing that could've helped the Orioles' case would have been if they had released a player prior to this under the morals clause who was actually performing well. Ponson was 7-11 with a 6.21 ERA in 2005 at the time of his release. They could have released Rafael Palmeiro when he was suspended for a positive steroid test and was accused of lying under oath before Congress. At the time he was hitting .280 with an .826 OPS. They might've still had to pay his salary, but they could not be accused of discriminating against Ponson for poor performance. The worst case scenario for the Orioles is that they're forced to pay Ponson's entire salary, which is what they would have been obligated to do regardless.

If the Orioles do win, it would lead teams like the Phillies to be able to void the contracts of guys who get in trouble with the law, especially if they have a prior criminal record. If Jason Michaels gets arrested again, they may have grounds to void his contract, for instance. Back in 1991, they could have voided the contracts of Darren Daulton and Lenny Dykstra after their car accident while intoxicated. Of course, such a move would have changed the entire course of the Phillies through the 1990s, from the fluke World Series appearance in 1993, led by Daulton and Dykstra, to the demise of the team in the mid 90s from the bloated contracts Daulton and Dykstra received, to the acquisition of Doug Glanville from the Cubs to replace an injured Lenny Dykstra in center field. I suppose with all things related to the Phillies, joy must be tempered with sadness.