Author Archive

The Law of Tanking, Part One

Early this year, Dallas Mavericks owner and perpetually frustrated baseball-team-owner-of-the-future Mark Cuban, during a team dinner, said this:

“I’m probably not supposed to say this, but, like, I just had dinner with a bunch of our guys the other night, and here we are, you know, we weren’t competing for the playoffs. I was like, ‘Look, losing is our best option. [Commissioner] Adam [Silver] would hate hearing that, but I at least sat down and I explained it to them. And I explained what our plans were going to be this summer, that we’re not going to tank again. This was, like, a year-and-a-half tanking, and that was too brutal for me. But being transparent, I think that’s the key to being kind of a players owner and having stability.”

The National Basketball Association was, shall we say, peeved at Cuban, fining him $600,000. Why? Because of the implication that the Mavericks were intentionally losing games.

“Yes, it’s not what you want to hear as commissioner,” Silver told reporters at a news conference following a league meeting. “I will say that Mark has a long track record of being provocative, and… I think he acknowledged it was a poor choice of words.

“When we looked at what was actually happening on the floor, which is most important to me, there was no indication whatsoever that his players were intentionally losing games. And so we were satisfied with that, and again, and we moved on.”

Despite the resolution of that particular incident, tanking continues. In fact, the league’s fine of Cuban more or less confirmed that, while intentionally losing games is forbidden, intentionally losing seasons is acceptable — as long as no one talks about it. And while, for years, we talked about tanking as a uniquely NBA problem, that’s not the case anymore. In Major League Baseball, the tank is on.

That raises some interesting questions: under the MLB rules, is tanking legal? Is tanking legal under the law? And if it isn’t, what’s the redress? Believe it or not, these are not at all simple questions. And so we’ll start by asking a simpler question — namely, what is tanking, anyway? Royals Review gives this definition, which seems good for our purposes.

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The Possible Legal Consequences for Addison Russell

On Thursday night, Melisa Reidy-Russell, ex-wife of Cubs shortstop Addison Russell, for the first time went public with specifics about the abuse she says she suffered at the hands of her former husband. The blog post contains explicit descriptions of spousal abuse, infidelity, and domestic violence. As a result of the allegations, Russell was no longer with the team by Friday afternoon. He was later placed on administrative leave.

Major League Baseball has been investigating allegations that Russell was physically abusive to his now ex-wife since last year — allegations which Russell denied at the time. It should be noted that Melisa is not the person who made those allegations last year; in fact, at the time, she declined to speak further with MLB investigators. Nevertheless, this is the first detailed statement we have from either party regarding the matter. It’s worth noting that the parties’ divorce was finalized on August 30, 2018.

Longtime sports and law analyst Lester Munson was struck by the nature of Melissa’ account:

“I must say that her statement is among the more compelling and persuasive statements I have seen as I have reported on these events over the last 25 years…. Her language is so forceful. It has such detail that you really begin to think there’s no question that all of this happened.”

I won’t reproduce Melisa’s account here in full, but some of her allegations merit further discussion. Note that, among those I won’t be discussing, are Melissa’s charges of infidelity. While perhaps indicative of a troubled relationship, infidelity is also generally not illegal or abusive. Accordingly, I’ve omited any consideration of it from the following.

Instead, let’s focus on what abuse was specifically alleged and what the legal ramifications might be for Russell. We don’t know exactly where all of this took place, but we do know that Russell played for the Cubs, so it’s reasonable to assume that some or all of the episodes mentioned in Melissa’s account occurred in Illinois. The following quotes are excerpted from her blog post. Please note that some of what follows is unpleasant.

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An Update on the Cleveland Indians and Chief Wahoo

Back in February, I wrote about an action brought by an indigenous person in Canada regarding the Cleveland Indians’ logo and team name.

Baseball may be America’s national pastime, but there remains a single franchise north of the border, and that has created an interesting conflict between American and Canadian law. There is currently litigation about both Chief Wahoo and the Indians’ name pending in Canadian courts. In that case, an indigenous person is suing to block the Indians from using either their name or Chief Wahoo while playing in Toronto on the grounds that it violates Canada’s legal protections for indigenous peoples. Major League Baseball has intervened in that case on the Indians’ behalf. In Canada, “Indians” is a foreign (United States) registered trademark which has also been registered in Ontario, and Canadian law on free speech and trademarks is different. And if the plaintiff wins that case in Canada, the Indians would likely be required to play the Blue Jays in Toronto as simply “Cleveland.”

Interestingly, had the case been decided after the season, at least part of the issue would have become moot: the Indians are phasing out Chief Wahoo after this season. The case, however, has since ended — and though most reports indicate that Douglas Cardinal, the plaintiff, lost, that characterization of the result seems not to be entirely accurate. Instead, Cardinal’s lawyer, Monique Jilesen, told the Canadian Press that the case had been “resolved.” In fact, evidently as part of that resolution, the Indians did not display Chief Wahoo on their uniforms during their recent four-game weekend series in Toronto. According to Paul Hoynes,

Manager Terry Francona said the decision not to wear Chief Wahoo on their uniforms or caps during this four-game series at Rogers Centre in Toronto was made by the organization to show respect for anyone offended by the soon-to-be discontinued logo.

“We’re just trying to be respectful,” said Francona. “We’re never trying to be disrespectful by wearing it. We just want to do the respectable thing.”

Asked about the change, Blue Jays president Mark Shapiro, who previously held the same role with Cleveland, expressed approval.

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A Viable Path for Vlad Jr. to Fight Service-Time Manipulation

Yes, this is yet another piece addressing the problem of service-time manipulation, an issue which has been discussed at some length both in these pages and others. In 2018, Ronald AcunaPeter AlonsoVladimir Guerrero Jr.Eloy Jimenez, Gleyber Torres, and even Byron Buxton have all spent extra time in the minor leagues this year, in whole or part to gain their teams an extra year of contractual control.

The MLBPA has weighed in against the practice, but with grievances — like the one filed by Kris Bryant in his rookie year — essentially having stalled out, there doesn’t seem to be a resolution on the horizon. Because minor leaguers (that is, players not on a major-league 40-man roster) aren’t members of the union, the issue of service-time manipulation hasn’t necessarily represented a priority.

Here’s the Blue Jays’ 40-man roster. Vladimir Guerrero Jr. isn’t on it. He almost certainly will be next year. As of right now, though, he isn’t — which means he also isn’t a member of the Major League Baseball Players’ Association. Somewhat surprisingly, there’s a way that might actually represent an advantage for him. Specifically, it might give him the opening he needs to challenge the practice of service-time manipulation in court… and win.*

*For our purposes, let’s assume that Toronto is subject to American law. As you’ll see, the argument below can be applied really to any minor leaguer. We’re just using Vlad as an example.

Few teams admit to manipulating service time. It is not surprising, therefore, to find that the Blue Jays have also been reluctant to invoke service time when justifying the absence of Vlad Jr. from the major-league roster. Here is how Blue Jays president Mark Shapiro explained it back in July on SiriusXM Fantasy Sports Radio:

We want to make sure from the teenage perspective, leadership perspective, defensive perspective, routines, nutrition, all the little things, that we have this guy with as good a foundation as possible.

Most of the traits invoked here are sufficiently dependent on the opinion of baseball professionals that the prospect of performing any kind of analysis on it, from the outside, is basically impossible. Leadership and routine: both are surely required, in some volume, to flourish in the majors. The people most well positioned to evaluate those qualities are all probably employed by the Blue Jays, however. To that degree, all one can do is take Shapiro at his word, even if those words seem quite convenient for Toronto’s bottom line.

Shapiro mentions another “perspective,” however, that is less frequently invoked by front-office personnel and which also seems more suited to some kind of objective assessment — namely, nutrition. Nor is this the only occasion on which it has been cited by Toronto as one of the reasons for leaving Vlad Jr.’s potent bat in the minors. So let’s consider nutrition for a moment.

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Could the Angels Really Give Mike Trout a Lifetime Contract?

Consider this your periodic reminder of how awesome Mike Trout is. Including Sunday’s games, the best player in baseball has recorded a 192 wRC+, a career-high that leads all qualified hitters. He’s in the top 10 in the major leagues in homers (T-9th), walk rate (1st), BABIP (6th), isolated power (1st), batting average (5th), on-base percentage (1st), slugging percentage (3rd), and WAR (T-1st). He just crossed the nine-win mark for the fifth time in his career. He only just turned 27.

Based on reports, it appears as though the Angels expect this kind of production to continue for a while longer. Consider:

It’s not difficult to see Anaheim’s logic here. Mike Trout may very well end up as the greatest player ever, and that’s the sort of player you want to keep around because, well, he’s better than everyone else.

Of course, when Heyman use the word “lifetime” what he really means is “until that point at which Trout retires.” The Angels, presumably, would like one of baseball’s best ever players to end his career having played only for their team. There’s probably some value in that. How much value is a question for a different time, but “some” is an adequate answer for the moment.

But what if we were to understand “lifetime” in a more literal sense. What if, hypothetically, the Angels wanted to sign Mike Trout to an actual lifetime contract? Could they legally employ Mike Trout until he shuffles off this mortal coil, likely having hit 20 homers in each year of his 80s?

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On Josh Donaldson, the Indians, and Trading for Injured Players

The most controversial trade at this year’s August 31 waiver-deal deadline was the Indians’ swap of Julian Merryweather for the injured Bringer of Rain, Josh Donaldson. It’s not hard to see the appeal for Cleveland: at the cost of a 27-year-old hurler who missed the year with Tommy John surgery, the team picked up a third sacker who produced no fewer than five wins each year between 2013 and -17. And yet, the deal has been met by no small amount of consternation from the Indians’ American League postseason competitors, with the Astros, Red Sox, and Yankees all complaining to MLB that the trade was against the rules. Their argument is twofold: not only that the Indians shouldn’t have been allowed to deal for Donaldson, but that they (the Astros, Red Sox, and Yankees) didn’t outbid the Indians because they thought such a deal would be against the rules.

It makes sense, that the Indians’ competitors for the AL pennant would be taken aback. Donaldson isn’t a small acquisition; as Dan Szymborski noted, Donaldson is likely still close to an elite hitter when healthy, even after his injury-plagued 2018. So let’s take a look at whether the Astros, Yankees, and Red Sox have a case.

To begin, consider these comments from Sportsnet’s Ben Nicholson-Smith:

Nicholson-Smith reported on August 25th that Donaldson was still too injured to get into rehab games. The very next day, the Blue Jays announced Donaldson would start a rehab assignment, and he reported for that assignment on August 28. Keep in mind that Donaldson had been placed on the disabled list on June 1 and hadn’t played since May. He was then dealt on August 31, after playing in parts of two rehab games (on August 28 and 30) with Toronto’s High-A affiliate in Dunedin.

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Why the CBA Should Be the Province of Lawyers

On Tuesday, Joe Sheehan wrote a typically thought-provoking piece addressing, in this case, the problem of service-time manipulation, an issue which seems to have reached a tipping point in the 2018 season, a year in which Ronald Acuna, Peter Alonso, Vladimir Guerrero Jr., Gleyber Torres, and even Byron Buxton have been subject to extended minor-league seasoning so their teams can get an extra year of contractual control.

While the Major League Baseball Players’ Association hired Bruce Meyer in part to address these issues when the next collective bargaining agreement is negotiated, Sheehan suggests we rethink the entire process, and calls for “a constitutional convention to address the problems that four decades of patching its rules have created.” In the relevant passage, Sheehan suggests that collective bargaining isn’t necessarily up to the task of solving problems ranging from service-time manipulation to pitching changes to the structure of the playoffs.

We’ve relied on Collective Bargaining Agreement negotiations, twice a decade or so, to address these questions, but those negotiations have proven inadequate to the task. The fact is, these questions exceed the scope of a CBA negotiation. Answering them needs to be a collaborative process, not a confrontational one. Representatives from the league and the teams and the players should be involved, but so should vested interests from all over baseball.

Historians like John Thorn bring perspective about how the game on the field has evolved. Analysts like’s Mike Petriello have a grasp on how technology is changing player evaluation and strategy. Controversies over player behavior have alienated fans; giving visible, insightful women like Fangraphs’ Meg Rowley and Baseball Prospectus’ Rachel [sic] McDaniel a seat at the table would send a message that baseball wants everyone to feel welcome.

Let me start by saying that Meg, Rachael, Mike, and John are all fine people and excellent analysts. I’m proud in particular to call Meg a colleague (it is not, in my view, hyperbole to call Meg Rowley the most talented baseball writer working today), and all would, I’m sure, make fine decisions in a position of decision-making baseball authority. With that caveat, however, I have to [differ with] Joe in two primary areas. First, the only people who should have a “seat at the table” of answering most of these questions are lawyers working on behalf of the two sides (players and owners). And second, answering these questions isn’t beyond the scope of a collectively bargained agreement; to the extent recent CBAs have failed to answer them, that’s a failure of negotiation, not a failure of collective bargaining generally.

Let’s start with that second point, by posing another question — namely, what, exactly, is the purpose of a collective bargaining agreement? A CBA is a contract which determines the respective rights, duties, and obligations of an employer and its employees. But it’s also more than that. A collective bargaining agreement doesn’t just determine pay, benefits, and hours worked — it can also determine workplace conditions and safety, discipline, job parameters, and retirement pensions. So when MLB’s collective bargaining agreement makes determinations regarding, for instance, the Home Run Derby, it’s not just establishing the rules of a contest you and I watch on television. It’s setting the ground rules for a part of the employment of every major leaguer.

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The Problems with Sean Doolittle’s Challenge

The best part of being a lawyer, aside from winning cases, is using long and cool words like fiduciary and promissory estoppel and collateral attack and forcible entry and detainer. The worst part of being a lawyer is when you have to give people bad news, to play the role of the “fun police.” This piece falls squarely into the latter category.

Enter Nationals southpaw Sean Doolittle, who, as our very own Carson Cistulli explained last week, has issued a challenge. Specifically, this challenge:

Awesome! Bat flips are awesome. Like this one.

Shortly after his comments were published, Doolittle later said he was joking.

That is, as they say, unfortunate. Really unfortunate, in fact, because I agree with Dan Gartland and Scott Allen: this challenge is awesome. Or, more precisely, it would be awesome if the rules allowed it. Alas, today I’m forced — in my capacity as an officer of the fun police — to inform you, Dear Reader, that Doolittle’s idea is probably prohibited.

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Michael Schwimer on Francisco Mejia and the Future for Big League Advance

Back in April, I wrote about the lawsuit former Indians uberprospect and current Padres backstop Francisco Mejia had filed against Big League Advance. As I wrote earlier this week, that case is now over. Michael Schwimer, the CEO of Big League Advance, who was good enough to talk to me after my initial post on the case, spent some time this week answering my questions about how the case ended. Once again, Schwimer was forthcoming about his company, the Mejia suit, and the future for himself and his business.

I first asked Schwimer what happened at the end of the case. Schwimer told me that Mejia dismissed his case voluntarily, without providing a specific reason. That said, Schwimer suspects “peer pressure [on Mejia] from players” might have had something to do with it. “[We got] overwhelming support from minor-league players,” Schwimer said regarding the suit, adding that BLA clients were largely supportive of the company through the litigation. Schwimer also corrected one assumption I’d made in my previous article — that no discovery had been performed. BLA, at least, had responded to document requests propounded by Mejia’s attorneys. Schwimer thought that response had something to do with Mejia’s decision to dismiss his case, as well. “We had proof to back up literally everything,” Schwimer told me.

Among Mejia’s allegations was that BLA purportedly hired a lawyer for him — and paid that attorney to advise him — solely with a view to including language in the contract that he’d had the benefit of counsel. But Schwimer told me that BLA had correspondence with Mejia’s private attorneys refuting the claim. “We had the emails with Francisco’s lawyer, where [the lawyer] redlined the contract for Francisco’s benefit,” Schwimer said. “He reduced the endorsement from 6% to 2.5%, and made other changes that helped Mejia.”

As I noted in my postmortem on the case following its dismissal, apologies in lawsuits are incredibly rare, and I was curious to know how this one came about. “We did ask him to apologize, no doubt,” Schwimer said. In this case, the apology was part of a settlement, but not of Mejia’s claim. Instead, Schwimer explained that Mejia voluntarily dismissed his claim and settled BLA’s counterclaim. The apology was part of that settlement.

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Joe West, Austin Davis, and the Theater of the Absurd

A while back, I wrote about Angel Hernandez and his lawsuit against Major League Baseball. In said piece, I noted that “[p]layers in both the American and National League voted Hernandez one of the game’s three worst umpires. (In case you’re wondering, Joe West was worse in both leagues.)”

It’s time to talk about Country Joe West. West hasn’t sued anybody lately, but he did manage to get himself in a kerfuffle involving the Phillies, Austin Davis, and a piece of paper.

So as to prolong the suspense, it’s worth noting why West is considered a bad umpire. Unlike Angel Hernandez, his reputation isn’t necessarily for creative calls. In fact, back in 2007, The Hardball Times named him baseball’s most consistent umpire (though he called this balk on Tony Cingrani).

No, West is more known for his colorful personality. He was suspended for calling Adrian Beltre the “biggest complainer” in baseball. And he also likes staring matches. Like this staring match with Madison Bumgarner.

And this staring match with Jimmy Rollins.

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Francisco Mejia, Big League Advance, and “Perry Mason Moments”

For every trial lawyer, the Holy Grail is that “Perry Mason moment.” That’s the dramatic point in the episode where the real killer, under skillful cross-examination by Mason, reveals everything to the shocked judge and jury, the chagrined prosecutor* agrees to drop the charges, and everyone rides happily into the sunset.

*On a completely irrelevant aside, the prosecutor in Perry Mason is just really awful. He doesn’t seem to know how to check his own cases, or interview witnesses, or use the Rules of Evidence, or object properly. I could never watch this show without wondering how he keeps his job.

It also almost never happens this way. Shocking, I know. (In my career, I’ve had three instances of what could be termed “Perry Mason moments.” Cultivating one requires a combination of preparation for the witness and a lot of luck.)

Earlier this year, I wrote about a lawsuit that Francisco Mejia had filed against Big League Advance, a company founded by former MLB pitcher Michael Schwimer which gives minor-league players capital advances against anticipated future major-league earnings. As I wrote then, Mejia made some pretty serious accusations against Schwimer’s company.

According to Mejia, BLA approached him when his mother was very ill and struggling with medical bills. The contracts were signed, says Mejia, without a translator, and BLA even paid for Mejia’s lawyer just so the contract could state Mejia had the advice of counsel. Mejia says that BLA employees showed up at his house unannounced to collect a payment of about $10,000 after Mejia made the big leagues and threatened to bar him from playing if he didn’t pay. And, according to the Complaint, given Mejia is projected to earn over $100 million in the major leagues, BLA stands to recover over $10,000,000 against a $360,000 investment, which Mejia says is unconscionable.

Then, last week, Mejia suddenly dropped his lawsuit.

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David Wright, Peter Alonso, and the Law of Metropolitan Frugality

The New York Metropolitans have had what might be termed a disappointing season. (If this comes as news to you, I’ll wake you up when September ends.) Two of the Mets’ more recent debacles have involved a pair of players at very different stages in their careers. First, there’s David Wright, the Mets’ team captain and erstwhile third-sacker, who, as Jay Jaffe wrote last week, is attempting to work his way back from spinal stenosis, among other injuries. Then there’s Peter Alonso, the Mets’ first baseman of the future and author of a .285/.395/.579 slash line and 36 home runs across the upper minors this year, whom the Mets seem determined not to make the first baseman of the present.

Naturally, this has ruffled some feathers. The story with Wright seems to be that the Mets aren’t activating him because they instead want to collect insurance money, which is currently covering 75% of his salary while he’s on the disabled list. He’s not medically cleared to play despite appearing in minor league games.

This has led some to accuse the Mets of committing insurance fraud. (In a bizarre twist, MLB has a long history with insurance fraud, leading most recently to a case in which Ted Lilly was convicted of insurance fraud related to $4,600 worth of damage to his RV.)

Before we continue, please make sure you sit down, swallow any food or beverage in your mouth, and note the date and time, because I am about to defend the Mets.

No, the Mets are not committing insurance fraud.

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The MLBPA Has a New Chief Negotiator

The biggest legal news to come out of Major League Baseball last week was the hiring of attorney Bruce Meyer as the union’s new “Senior Director of Collective Bargaining and Legal.” In other words, Meyer is the MLBPA’s new chief negotiator with Major League Baseball.

Why is Meyer a big deal? First, because he quite literally wrote the book on sports law. But Meyer is far more than an academic and author (though that would be impressive enough in terms of credentials). Meyer, a partner at Weil, Gotshal, and Manges LLP, is a trained trial lawyer with more than 30 years of experience in contested litigation. But it’s the nature of those cases that is relevant here. From Meyer’s biography at the Practicing Law Institute:

Mr. Meyer has extensive jury trial experience, having tried lengthy and complex cases to juries in locales across the country, including New York, Pittsburgh, Minneapolis, Western Massachusetts, Boston, and Texas.


Among other notable victories, Mr. Meyer: successfully defended Westinghouse in a major products liability action, resulting in a defendant’s jury verdict after a three-month trial; struck down the NFL’s free agency restrictions after a three-month antitrust jury trial; prevailed in a complex six week reinsurance arbitration for Life Re; achieved a complete defense verdict for Procter & Gamble after a three-week jury trial; and achieved a complete defense verdict in a $70 million preference action against Prudential. Recently, he obtained punitive damages after trial in a trade secret case, obtained a mandatory preliminary injunction for Vivendi in a high-profile case involving the launch of a major music television channel, obtained summary judgment for GlaxoSmithKline dismissing all claims in a suit alleging trademark, false advertising and trade secret violations, won bench trials for eBay and XM Satellite Radio, and prevailed in arbitrations for Rolls Royce and for PAI Partners, a leading French private equity firm.

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How LeBron James’ Tattoos Could Affect Baseball

Although FanGraphs is very much a baseball site, we’ve occasionally paid homage to arguably the greatest basketball player of all time, Lebron James. (My favorite was this piece by the inimitable Jeff Sullivan trying to design a 23-WAR baseball player.) Every so often, LeBron does something which forces us to ask questions — questions that might also be relevant to baseball — and then we have to cover it. Something like that is happening now, in a lawsuit about tattoos and video games.

LeBron has some awesome ink. It’s a part of his brand, and so back in 2015, those tattoos were included in the computerized depiction of LeBron created for the NBA2K video game. The game also included tattoos on the bodies of Eric Bledsoe, Kobe Bryant, DeAndre Jordan, and Kenyon Martin (among others). Ordinarily that wouldn’t have been a big deal, except that it led to a lawsuit being filed by Solid Oak Sketches, LLC, against the video-game makers, for copyright infringement. Solid Oak Sketches has an exclusive licensing agreement with the tattoo artists, which means that Solid Oak owns the exclusive right to market, sell, and otherwise control the copyrights to the tattoos in question. In the summary judgment briefing in Solid Oak’s case, LeBron provided an affidavit which saidinter alia, this:

In the fifteen years since I’ve been playing professional basketball, this case is the first time that anyone has suggested to me that I can’t license my likeness without getting the permission of the tattooists who inked my tattoos. No tattooist has ever told me I needed their permission to be shown with my tattoos, even when it was clear I was a public basketball player.

You can already recognize how this might have some relevance to major leaguers. Javier Baez, Matt Kemp, Jose Ramirez, Ryan Roberts, and Gary Sanchez (among many others) have all been known, at one time or another, for their tattoos. If a baseball video game includes them in its depictions of the players, is that copyright infringement? Is showing them on a nationally televised baseball game copyright infringement?

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One More Reason the MLBPA Should Include Minor Leaguers

Over the past few months, within the estimable pages of this very site, Nathaniel Grow and I have both discussed at some length the consequences of the Major League Baseball Players’ Association’s exclusion of minor leaguers. The most obvious, of course, is minor leaguers’ pay. But there’s another less obvious consequence of the MLBPA’s current membership approach, stemming from the reality that minor leaguers become major leaguers. Not all of them, of course, but there are very few players who jump straight to the bigs without having ever graced a minor-league field. And that means that the vast majority of major leaguers will spend at least some period of time without union representation, during which they will do things, and say things, which eventually will reflect on the union and its membership as a whole.

Now, unions serve a lot of purposes — more than just negotiating for higher wages. They improve workplace safety, secure healthcare and other benefits, and can provide a counterbalance against the structural mismatch of a large employer. But they do all of this by representing their members, and helping those members put their best foot forward, whether by training or otherwise.

What unions can’t (or don’t) do, however, is provide these services for non-members. This makes sense: a union won’t want to make non-members better able to compete with people whose interests it’s protecting. So while it’s somewhat understandable that the current members of the MLBPA don’t want to expand their protections to include non-members, the problem is that minor leaguers and major leaguers don’t really compete for the same job in the sense that a union electrician and non-union electrician compete for the same job. When a minor leaguer gets called up, he becomes a union member. Two 40-man roster players competing for a spot are both already union members. So excluding minor leaguers doesn’t limit competition; it just makes future members worse off.

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Trevor Bauer, Fame, and the Right of Publicity

It didn’t get nearly as much press coverage as fake news tweets about CIA nanites, but back in June, injured Indians hurler Trevor Bauer filed a lawsuit against a company called Top Velocity, LLC, alleging that Top Velocity and its owner, Brett Pourciau, illegally used his license in violation of federal, Texas, and Louisiana law. You can read his Complaint here.

There’s a lot to unpack. Remember that this is, as always, a simplified overview: don’t go practicing law or filing lawsuits based on what you see here.

Let’s start with the crux of what Bauer is saying.

This might seem kind of funny (Bauer is alleging he is World Famous!), but it’ll be important later. Now to what Bauer is saying Top Velocity and Pourciau did wrong:

Bauer also alleges that his attorney made repeated requests that Pourciau and Top Velocity remove Bauer’s name and likeness from their website. According to Bauer, after some back-and-forth, they agreed.

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Trevor Bauer, CIA Nanites, and Remedies for Misunderstood Satire

Trevor Bauer has been probably Cleveland’s best starting pitcher this year. In his long-awaited breakout, Bauer has racked up 5.9 WAR in just 166 innings on the back of a 51 ERA- and 57 FIP-. His peripherals fully support his performance: a 31.5% strikeout rate and 23.2-point K-BB% are nothing short of elite. His fastball, curveball, cutter, slider, and changeup, meanwhile, have all been well above-average offerings by pitch values. In other words, Bauer’s been Cleveland’s ace, and that’s no small feat on a team with Corey Kluber and Carlos Carrasco.

So it was a pretty significant blow last week when Bauer suffered a stress fracture in his right leg, the result of being hit with a line drive off the bat of White Sox slugger Jose Abreu.

Bauer is without a firm timetable to return. He also has a history of proposing novel and ill-advised medical procedures like sealing a cut with a soldering iron. The combination of those facts led Michael Baumann, writer for the Ringer, to tweet this.

This is a joke. Colloidal silver is the quintessential snake oil, with no efficacy for treating diseases and potentially serious side effects ranging from skin discoloration (as in, you turn blue) to organ failure. Still, it continues to be marketed as a treatment or cure for the common cold, despite that advertising likely being illegal. In short, colloidal silver is quackery, and as Baumann related later, he assumed we’d know that and get the joke.

I assumed that my joke about Bauer using blood transfusions and colloidal silver to cure his injured fibula was so ridiculous it would be impossible to mistake it for actual serious reporting.

Never underestimate the capacity of humanity to prove your assumptions wrong.

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How an Agent with Multiple Players Avoids Conflict of Interest

Last week, I wrote about fiduciary relationships in the context of Scott Boras and Jayson Werth, citing the seminal case of Detroit Lions v. Argovitz as a model to better understand an agent’s responsibilities to his client. (If you didn’t read that piece, you should, because it’s the prerequisite for everything which follows.)

Anyway, a number of commenters asked me to look at a slightly different configuration of the sports-agent fiduciary problem: what happens when an agent potentially has a conflict of interest which results from representing more than one player?

Before we answer, a few caveats. First, we are not analyzing actual situations here. This is not a guide on how to avoid disciplinary action by your state’s bar or your league’s player union. Second, this is a bird’s-eye view from about 50,000 feet, which is to say that we are oversimplifying things greatly. There is a lot more to it than what you see here, but submitting 20,000 words to my editor on conflicts of interest in fiduciary relationships (which is surprisingly possible) would likely draw his ire. Third, this is a broad overview based on American law. This is actually an international issue, which means that Canada and Australia, for example, have different rules. Finally, please don’t start a sports agency based on what you see here.

Now, moving on. There’s a couple of different ways to analyze the question posed above. On the surface, it may seem that having a multiple clients is not, in and of itself, a conflict of interest. And while that’s frequently the case, remember that a fiduciary owes a duty of loyalty to the beneficiary — to the exclusion of everyone else. As attorney Robert Kutcher explains,

Whenever one party places trust and confidence in a second person with that second person’s knowledge, it is possible that a fiduciary relationship is created. Such a relationship imposes on the fiduciary the duty to act in the best interest of the person who has placed his or her trust and confidence in the fiduciary. As a result, the fiduciary may not simply deal with that party at arm’s length, guided only by the morals of the marketplace.

It’s also possible to go to the other extreme. Since sports agents are fiduciaries, you could also argue that taking on more than one client is an inherent conflict of interest, because every minute dedicated to one player’s case is a minute not dedicated to another’s, to whom a fiduciary duty is owed. But that can’t be right either, because Scott Boras, for instance, has lots of clients. Most agents have multiple clients.

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Would the Orioles Be Better with Rafael Palmeiro?

Chris Davis is having a no good, terrible, very bad season. He’s hitting .163/.245/.310, good for just a 49 wRC+, and overall has contributed 25 weighted runs below average. His once-solid defense at first base seems to have deteriorated, as well: his -3.6 UZR/150 this year at that position represents the lowest figure he’s recorded since playing there in limited fashion for the Orioles back in 2012. Overall, he’s posted -2.2 WAR, and if that sounds like it’s close to historically bad, that’s because it is. And while Davis is no longer in danger of authoring the worst season ever, there’s no disputing that, as a player, his 2018 campaign leaves much to be desired.

Davis’s futility led a reader to pose an interesting question in Dan Szymborski’s chat this week: would the Orioles be better off using Rafael Palmeiro at first base in 2018 than Davis? Because this seemed like a question worth answering, I enlisted Dan’s help (in exchange for crafting some documents so he could buy the Orioles) in doing just that.

Rafael Palmeiro, in case you were wondering, is now approaching his 54th birthday. Back in his heyday, he was one of the more underrated superstars of the game. Over more than 2,800 games spread across 20 major-league seasons — mostly at first base and DH — he hit .288/.371/.515 (130 wRC+) and accrued 70 fWAR, including 10 (!!) seasons above 4 WAR. His counting stats, too, are impressive: 3,020 hits, 569 home runs, and even 97 stolen bases (including 22 in 1993). Perhaps most incredible of all, Palmeiro struck out 1,348 times in his career and walked 1,353 times , posting identical 11.2% rates.

Palmeiro was, in many ways, a complete hitter. He would probably be a deserving member of the Hall of Fame, too, had he not told Congress under oath that he’d never used performance enhancing drugs, then failed a steroid test just six weeks later. Congress even considered perjury charges against Palmeiro before concluding there was insufficient evidence to charge him in a report which, notably, called Palmeiro’s testimony “compelling” and included that he had passed a polygraph test.

But we’re not talking about prime Palmeiro. We’re talking about 2018 Palmeiro. While at first that might sound bizarre, Palmeiro is currently playing professional baseball. He and his son are teammates on the Cleburne Railroaders, a team in the independent American Association. And wouldn’t you know it, Palmeiro is raking. Though a full 26 years older than the league’s average player, Palmeiro is hitting .301/.424/.495. (His son Patrick is hitting .239 with a .654 OPS.) He has 20 walks to 25 strikeouts, showing he still has some plate discipline skills, and he’s been getting better as the season wears on, raising his OPS from .801 to .919 just since June 27.

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Jayson Werth, Scott Boras, and Fiduciary Relationships

Newly retired outfielder Jayson Werth was honored by the Phillies in early August for his contributions to the 2008 World Champions. He made news that weekend for comments that derided “super nerds” as “killing the game.” (It’s worth noting, of course, that Werth was a sabermetric darling back in the day, standing out for his plate discipline.) Of more interest to me, however, was this statement he made on the Howard Eskin podcast:

“I had offers in November, and I was advised by my former agent to wait; ill-advised, I guess.”


“Some guys were surprised to hear from me – they didn’t know that I wanted to play. Which was surprising, because I wanted to play. I let my agent know I wanted to play. And they said they either hadn’t heard from him, hadn’t heard from me, just didn’t know that I was available. So that’s one of the reasons why I’m no longer with that agent.”

That raises eyebrows for two reasons. First, because Werth is essentially accusing his agent of a breach of contract, and potentially a breach of fiduciary duty as well. (Keep that term in mind – it’ll be important later.) And second, because the agent in question is Scott Boras, who has been recognized by Forbes as the industry’s most powerful and who, thanks to Eric Hosmer, has now negotiated no fewer than 15 deals of $100 million or more. Accusing Scott Boras of not doing his job is a bit like accusing Clarence Darrow of malpractice: it gets your attention.

Now, Boras, for his part, denies any wrongdoing. His company, the Boras Corporation, gave the Washington Post‘s Chelsea Janes this statement:

Unfortunately, it appears someone has misled Jayson. We contacted all 30 teams numerous times during the offseason on his behalf, and we have phone logs, emails, and other records to back it up. We received no offers for Jayson in November, or otherwise. We are always prepared to support our work against inaccuracies spread by third parties. We understand the frustration and disappointment players can face and wish Jayson all the best.

What’s perhaps more interesting is this excerpt from Janes’ story (emphasis mine):

The Boras Corporation sends out a list of its free agents to every team at the start of free agency each November. Werth’s name was on that list. Boras Corp. provided that list for verification, as well as date-stamped phone logs that documented dozens of phone calls and emails made to executives on Werth’s behalf. Boras keeps detailed records of every offer and conversation, documentation that protects them against allegations of malpractice — and any litigation that could accompany them.

The reference to litigation isn’t accidental; I’d even wager that it was provided to Janes by the Boras Corporation itself. Boras is a lawyer and, believe it or not, lawyers are very deliberate in how and when they raise the spectre of litigation. This was a shot across Werth’s bow — a warning, if you will, not to pursue the matter further.

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