Do they have legal grounds to withhold his salary?
In 2011, then-Boston outfielder Jacoby Ellsbury was arguably the best player in baseball. The center fielder hit a mind-boggling .321/.376/.552 (150 wRC+) with 32 homers, 39 steals, and just a 13.4 percent strikeout rate en route to a Troutian 9.5 fWAR season. He never came close to that production again— less for lack of talent and more for lack of health. Ellsbury played in just 92 games combined in 2010 and 2012, bookending his breakout with a pair of lost seasons. Even in 2013, his platform season and second best year by fWAR, he played in only 134 games. A completely healthy Jacoby Ellsbury was a superstar. A completely healthy Jacoby Ellsbury was also a fool’s gamble.
Still, the Yankees decided in the 2013-14 offseason that Ellsbury at 7 years, $153 million was a better investment than Robinson Canó at the 10 years, $240 million Seattle offered. That kind of “fiscal responsibility” (read: penny wise and pound foolish) predictably backfired; after posting 3.6 fWAR in his first year in New York, Ellsbury has since played in just 371 of a possible 810 regular season games across five years, posting just 4.5 combined fWAR over that time. Meanwhile, Canó has had two individual seasons of more than 4.5 fWAR since signing with Seattle, and 2019 was the first year of his contract where he produced less than 2.8 fWAR.
It’s fair to say that the contract was an overpay, and it raised eyebrows even at the time, but no one forced the Yankees to offer an above-market deal for the decline years of an injury-prone player whose game was based on speed. That the Yankees released him earlier this month after he was unable to play for each of the last two seasons was unsurprising.
It’s also unsurprising— if disappointing— that the team is attempting to wriggle out from under its obligations to pay Ellsbury. Here’s the thing, though: MLB contracts are fully guaranteed in case of injury, so the Yankees don’t have the right to simply not pay Ellsbury because of his injury— because injuries are rarely the fault of the player. So the Yankees came up with a more, shall we say, creative approach. From Pete Caldera:
The Yankees’ parting with Jacoby Ellsbury has become a more bitter divorce.
Ellsbury’s remaining $26 million is being withheld by the club, which contends that the oft-injured outfielder violated terms of his contract.
According to a person familiar with the situation, the Yankees claim that Ellsbury received outside medical treatment without the club’s permission.
The treatment occurred on multiple occasions and the club only became recently aware of what it views as a breach of contract.
Yankees to file a grievance seeking to convert Ellsbury contract to non guaranteed after learning he sought unauthorized treatment for injuries. Could be steroids related
— billmadden1954 (@bmadden1954) November 22, 2019
On Friday, multiple sources told The Post, right after Ellsbury cleared release waivers, the Yankees sent a letter to the Players Association notifying them of their intention to convert Ellsbury’s contract from guaranteed to non-guaranteed, thereby liberating them from the outfielder’s $21 million salary for 2020 as well as a $5 million buyout of the $21 million team option for 2021. The basis of the effort is the Yankees’ contention Ellsbury, who missed the entire 2018 and 2019 seasons due to multiple injuries, received medical treatment at Progressive Medical Center in Atlanta for multiple years without the Yankees’ authorization. The exact time period is in question, hence the uncertainty about how much, if any, of the $127 million the Yankees already have paid Ellsbury will be in play.
The union, livid with the Yankees’ maneuver, made it clear it would challenge the team on Ellsbury’s behalf and hinted at a willingness to play offense as well as defense.
“The Players Association will vigorously defend any action taken against Jacoby or his contract and is investigating potential contract violations by his employer,” the union said in a statement. “Until further notice, we will have no comment.”
Despite how the Yankees have framed the issue, the Progressive Medical Center doesn’t appear to be an Anthony Bosch-style hole in the wall home for professional athletes to obtain PEDs. You can see from the clinic’s Facebook page that it’s been around for 20 years, has 125 reviews averaging 4.5 stars, and includes seven licensed physicians accepting insurance from seventeen carriers, including Aetna, Anthem, and Blue Cross Blue Shield. The physician Ellsbury saw, Dr. Viktor Bouquette, is a real doctor (an internal medicine specialist and former 1994 physician of the year). And some patients swear by Bouquette’s work, including in this book by Jacquelyn Sheppard.
That said, whilst it’s unlikely that Progressive Medical Center was providing Ellsbury with PEDs, the Yankees do have a legitimate grievance when it comes to Ellsbury’s choice of doctors. There’s a reason the Major League Baseball CBA gives teams the right to approve or veto any outside practitioners a player uses for baseball-related treatment.
Bouquette was disciplined in 2011 for misdiagnosing a patient with heavy metal poisoning when she actually had heart disease, resulting in her death; he was fined $7,500 and barred from performing chelation therapy in the future until he had completed certain environmental medicine classes. The Atlanta Journal Constitution noted later that Bouquette didn’t have malpractice insurance due, in part, to his unorthodox treatments.
Given this, it would be quite understandable if the Yankees didn’t approve of Bouquette, particularly as relates to a baseball-related injury. If Ellsbury did, in fact, go to Bouquette without authorization and receive treatment there, the Yankees may well have grounds to deem Ellsbury’s actions as a breach of contract and therefore withhold his salary. The problem is that, at least according to Bouquette, that’s not what happened.
“To my knowledge, [the Yankees] had no objection at all,” Bouquette said of Ellsbury’s treatment at PMC. “The only [request] I got from them was asking if I was familiar with the banned-substance list, and then saying I needed to put that in writing, which I did. That was the only contact we had with them [to that point].”
That written statement, at least according to Bouquette, was the Yankees’ condition for Ellsbury to continue receiving treatment at the clinic.
Still, Bouquette claimed that he hadn’t treated Ellsbury nor heard again from the Yankees since June. He added that any supplements PMC provides to patients are certified by the National Science Foundation and aren’t included on baseball’s banned list.
According to Bouquette, his clinic does not prescribe PEDs “for any reason whatsoever.”
“What happens if you give an anabolic steroid to someone who has inflammation, the symptoms on the surface might appear to mitigate,” Bouquette said. “But the underlying problem is amplified. It will actually cause more harm by doing that.”
If Bouquette’s account is accurate, the Yankees likely have no case. Under a legal doctrine called laches, a party can’t wait until it is convenient to assert a legal claim. In other words, laches bars the Yankees from waiting until an option decision is due, or the 40-man roster must be finalized, to make an objection to a contract that could have been made months earlier. The reason is that by waiting without objection, the Yankees lull Ellsbury into a false sense of security, making him think his actions are not problematic. That’s what’s known in the legal world as “prejudice,” i.e., Ellsbury was prejudiced by the Yankees’ actions.
And even if the time period wasn’t long enough to assert laches, Ellsbury would have a very good waiver defense. A waiver is a voluntary relinquishment of a known right, and can be implied as well as explicit. Actual knowledge that Ellsbury is visiting a doctor, and not voicing any objection for months whilst communicating with that doctor, is a fairly straightforward implied waiver.
That said, we don’t have the entire picture. The Yankees could have voiced an objection to Ellsbury directly. Bouquette’s account could be inaccurate. Still, this is far from an open-and-shut case for either side, and it’s unlikely the Yankees will be able, on the evidence we have, to establish their own diligence. The team’s leap directly to PED linkages, which at this point seem spurious, only serves to undercut the team’s credibility further. At this point, it would behoove the team to seek a settlement. Unless the team can establish that it made an express, timely objection to Bouquette and that Ellsbury was being treated for a baseball-related injury, the Yankees would be lucky if they saved even $5 million off of Ellsbury’s salary.