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Mariners Kick Off Offseason with an Accusation

The Seattle Mariners’ offseason hasn’t gotten off to an ideal start. Despite a 2018 campaign that saw the team win 89 games and compete for a Wild Card spot most of the year, the club appears likely to blow up its roster, having begun the process already with a trade of starting catcher Mike Zunino to Tampa Bay. That was followed by word that Seattle planned to move ace James Paxton, who still has two years of team control left.

While bad news for the team’s short-term prospects, such deals are at least designed to maximize the long-term health of the organization. Another recent development, however, would seem to have little in the way of silver linings. As Ryan Divish reported on Monday, the team suddenly finds itself in the throes of a messy public parting of the ways with ex-employee Dr. Lorena Martin.

You may recall that Dr. Martin was hired a little over a year ago as the team’s first “director of high performance,” a position crafted to use analytics and medicine to keep players healthy. At the time, Mariners general manager Jerry Dipoto issued a glowing review of his new hire, as passed along by the Seattle Times.

Martin, who was the director of sports performance analytics for the Los Angeles Lakers, will oversee the organization’s medical, strength and conditioning, nutrition and mental-skills departments.

“We have spent nearly a year working on creating this position and structure as well as identifying the best person for this role,” Mariners general manager Jerry Dipoto said. “Lorena’s background, skill set and previous experience make her a perfect match for what we envisioned.”

Despite the somewhat florid title, Dr. Martin’s role with the Mariners was fairly groundbreaking.

With the Mariners, she was put in charge of all aspects of physical and mental training for the team’s players, incorporating data from various trainers, coaches and physicians to improve performance.

“My passion for statistics derived from my desire to just want to answer a simple question: ‘What are the variables that professional athletes must have in order to become a world class athlete in their sport?’” Martin told GeekWire. “I found that I could answer my questions through research, measurement, statistics, and analytics.”

In June 2018, the Mariners were still lauding Martin and the job she was doing. In July, TJ Cotterill wrote a profile of Martin for the News-Tribune, noting that Martin had reduced the Mariners’ injuries by 50%. She received praise from Felix Hernandez, who told Cotterill that “[s]he’s made a huge impact.”

But the honeymoon didn’t last. Though Martin was signed to a three-year contract, the Mariners terminated her employment in early October. Ryan Divish relays for the Seattle Times that the Mariners didn’t believe she was as successful at changing the organization’s culture as the club originally anticipated she would be.

Martin’s presence with the major-league team wasn’t as visible as first expected. Dipoto gave her oversight over all aspects of the training and conditioning programs for the entire organization. It was was a massive undertaking.

Also, some players were slow to embrace a new style of thinking about their health, conditioning, nutrition and recovery… there were rumblings that she would have her role reduced with the big-league team and that she would instead work out of the team’s complex in Arizona, focusing more on the minor-league staff in 2019.

But on Monday, Martin posted on Instagram a different explanation for her termination.

In other words, Dr. Martin is not only alleging senior leadership used racist language but is heavily implying that she and others were terminated for reporting such language. If true, that would violate both Title VII of the Civil Rights Act of 1964, as well as Washington’s state-level Human Rights Act. And while we don’t have enough facts to know whether Martin would have standing to file suit for a racist remark if it wasn’t directed at her, terminating her for reporting that conduct is almost certainly unlawful.

The Mariners issued a categorical denial that any such racist conduct occurred.

Martin responded to the Mariners’ statement by confirming that she had, in fact, reported racist incidents to Mariners management.

Of note in Martin’s tweet here is that she provides actual names of trainers she says the Mariners terminated for reporting discriminatory statements. The Mariners, for their part, didn’t deny firing any trainers for that purpose — they denied firing any trainers at all.

So who’s right? We know that Martin didn’t pull the names out of a hat. The team’s categorical denials leave them very little wiggle room should new details emerge. Santiago, for example, was confirmed as working for the Mariners as an athletic coordinator before the 2017 season. I wasn’t able to find any public confirmation that either Santiago or Valdez were terminated, but it should also be noted that neither is listed on the team’s staff directory or coaching roster (though Dr. Martin is still listed). Martin explained her delay in coming forward as the result of ongoing negotiations.

Ryan Divish confirmed at least that such negotiations were occurring, writing that “[s]ources indicated that the Mariners are trying to avoid paying the remaining two years on Martin’s three-year contract for various reasons and that she has hired an attorney.” At the same time, Divish noted that Martin’s contract likely contained an arbitration clause, which would preclude either side from bringing a lawsuit and require both parties to present their claims to an arbitrator.

So why did the Mariners terminate Martin? At this point, we have the team saying it was poor performance and Martin saying it was retaliation for reporting racist comments. It’s also worth noting that the team, including Dipoto, has previously taken a hard line against racist comments, most notably suspending catcher Steve Clevenger without pay for tweets he made regarding Black Lives Matter. The details of this incident are still emerging. Dr. Martin went on the record with the Tacoma News Tribune Monday evening to further detail her allegations; the Mariners once again issued a categorical denial, calling Dr. Martin’s claims “fabricated,” including “her statements about reports to Human Resources and specific allegations about people named in the story.” We simply don’t have enough information at this point to conclusively determine what happened, but either way, this will be a cloud hanging over the Mariners’ already challenging offseason until we have greater clarity.


A Scout Is Suing the Minnesota Twins for Age Discrimination

Howard Norsetter, the Minnesota Twins’ international scouting coordinator, was fired at the end of the 2017 season. The termination came as a shock, both because of Norsetter’s long tenure with the team – he was first hired by Minnesota in 1991 – and also because of his record whilst working for the Twins. Norsetter is most notable for being the scout who discovered and signed stars like Justin Morneau, but the sheer number of legitimate major league players he uncovered during his career is remarkable. Norsetter signed Grant Balfour, Liam Hendriks, Max Kepler, and Byung Ho Park, among more than 25 major leaguers. John Sickels posted an interview with Norsetter from 2010 in which he demonstrated a sharp baseball mind.

And even after Norsetter was let go, the Twins continued signing players he’d found and recommended, including Kai-Wei Teng. In other words, Norsetter, who lives in Australia, is undeniably good at his job. The Twins evidently agreed, saying his termination wasn’t performance related. Norsetter was later hired for a lesser position with the Philadelphia Phillies.

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Marco Gonzales Got an Unusual Raise

Quick: who led the Mariners in pitching WAR in 2018? If you guessed James Paxton, you’d be right, because Paxton is awesome. What you might not expect, however, is that Paxton finished just 0.2 WAR ahead of the team’s second-best starting pitcher by that metric, Marco Gonzales. To put it another way, Gonzales was worth more in 2018 than free agents J.A. Happ and Charlie Morton — and the same as Dallas Keuchel. Quietly, the former Cardinal racked up 3.6 WAR on the back of a 98 ERA-, 83 FIP-, and microscopic 4.7% walk rate.

If you want to put Gonzales’s elite control in a different context, consider this: there were 57 major-league starting pitchers who qualified for the ERA title this year. Of those, Gonzales had the fifth-best walk rate by BB/9, better than Jacob deGrom, Zack Greinke, and Kyle Hendricks. By BB%, Gonzales still had the fifth-best walk figure, sandwiched between Ivan Nova and Justin Verlander. Unlike Hendricks and Nova, though, Gonzales missed bats, striking out better than 21% of hitters (about 7.8 per nine). Gonzales ditched his four-seam fastball after April in favor of a cutter, which he mixed with his sinker, changeup, and curveball to generally good results. (All four pitches had positive run values in 2018.)

So, on the surface, when Gonzales received a two-year contract worth $1.9 million from the Mariners this offseason, it seemed reasonable — if not light — for a young left-hander coming off a quality season. But Gonzales isn’t even eligible for salary arbitration until 2021, which raised more than a few eyebrows.

Unfortunately for Gonzales, this isn’t a case where the Mariners decided to reward his fine season with a raise. Instead, there were other factors in play.

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The Mets, Brodie Van Wagenen, and When Agents Join Front Offices

According to Joel Sherman and Mark Feinsand, the next general manager of the New York Mets will be agent Brodie Van Wagenen.

Van Wagenen, who unlike most sports agents is not an attorney, is part of the sports division of Creative Artists Agency, which represents athletes, actors, and other artists. Van Wagenen, it should be noted, is co-head of CAA Sports, the agency’s athletic representation arm. But Van Wagenen is more than just an ordinary baseball agent; he negotiated Robinson Cano’s 10-year megadeal with the Seattle Mariners, Ryan Zimmerman’s nine-figure pact with Washington, and Yoenis Cespedes’ current deal with the Mets. In other words, Van Wagenen represents some of the sport’s biggest stars.

There’s little doubt that Van Wagenen’s experience negotiating some of the sport’s largest contracts gives him a significant amount of experience that will serve him well in his new role. Van Wagenen has also garnered a reputation as one of the most player-friendly voices in the industry, which makes this move perhaps all the more surprising. For instance, during the famously slow 2017-18 offseason, he accused MLB owners of collusion and threatened that players would boycott spring training. He also has demanded trades for players who don’t receive contract extensions.

On the surface, it seems as though the addition of a player agent to a major-league front office could represent a boon for the union.

On the other hand, it isn’t Van Wagenen’s experience about which many in the industry are concerned.

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Major League Baseball Says It Isn’t in the Athletics Business

It might come as a surprise to some to learn that Major League Baseball used to be a tax-exempt non-profit. It’s true: Section 501(c)(6) of the Internal Revenue Code allows for professional sports leagues to claim tax-exempt status. That didn’t make the teams tax-exempt; the rule applied to sports’ central offices. It is an understandably controversial part of the tax code. Legislators have attempted to eliminate that tax-exempt status. MLB eventually voluntarily surrendered its non-profit status in 2007, mostly so it didn’t have to report its executive compensation.

MLB might not be a non-profit anymore, but that doesn’t mean it likes paying taxes. Its latest attempt to keep the IRS at bay concerns one of the unforeseen side effects of the new tax law, which we’ve talked about before. In this instance, MLB teams are upset about a deduction the IRS says they’re ineligible for. As the Wall Street Journal‘s Richard Rubin explains,

Team owners are fighting a proposed tax regulation that would deny baseball teams and other sports franchises a lucrative deduction they say they scored in last year’s tax law.

Congress intended that teams get the “full deduction,” MLB Commissioner Rob Manfred wrote in an Oct. 1 letter to the Treasury Department and IRS, attempting to draw a “stark contrast” between baseball teams that he said should get the break and others, such as investment bankers, who can’t.

The tax break at issue is the 20% deduction for pass-through businesses such as partnerships and S corporations that pay their income taxes through their owners’ individual returns. Congress designed the break as a companion to the rate cut for corporations, but it imposed limits that the government is now directing at team owners.

For those of you who either don’t know or don’t want to know what that last paragraph means, let me explain. The tax reform bill allowed certain types of enterprises called “pass-through” businesses – where the business pays its taxes via their owners’ tax returns – to have a tax deduction. Since many MLB teams are partnerships or other kinds of pass-through entities, they want to have this deduction too.

Now here’s the problem:

Congress included “athletics” on the list of businesses that couldn’t benefit from the new 20% deduction. Such exclusions in the law were meant to prevent people from turning labor income into business income. In athletics, that was intended, at least, to prevent a player from routing his salary through a limited liability company to get the business break.

And that has led Commissioner Rob Manfred to – no joke –argue Major League Baseball is not an athletics business in a letter to the IRS. Manfred wrote that “the activities of a major league professional athlete make up a de minimis amount of the total activities of all employees of a professional sports franchise.” He goes on to argue:

A professional sports club does not merely employ professional athletes, but rather employs hundreds of additional individuals who are responsible for conducting activities related to stadium operations, marketing, team operations, broadcasting and media, retail store operations, community engagement, and general and administrative functions. In fact, the substantial majority of time spent by a club’s employees does not relate to playing in the sporting contests presented by the club.

To MLB, a baseball team is in the business of receiving athletic services, not providing them. “The services being performed in connection with a sports franchise are those performed by the players, who are employed by the club—and in that regard, the club is receiving services, not performing them.” In other words, MLB is attempting to position itself as a league of marketing companies, rather than a sporting enterprise. Says MLB: “[The IRS’ interpretation of the law] incorrectly assumes that a professional sports club is . . . in the field of athletics merely because it employs athletes.” The problem is that this proves a bit too much. As Rubin explains:

…even if the performance of athletic services is only a small part of what a baseball team does, the IRS rule says that a business that is more than 5% athletic services is a service business and can’t get the tax break.

And that’s kind of the problem. MLB is trying to say it isn’t in the principle business of athletics because it employs primarily non-athletes. But this sort of thinking strikes me as a bit absurd. In the law, we look to the plain language of words when trying to determine the intent of the legislature. One way to do that is looking at a dictionary.Merriam-Webster defines “athletics” as “exercises, sports, or games engaged in by athletes“; by the plain language of the statute, Major League Baseball qualifies. Why? Because it is a business enterprise engaged in the marketing, presentation, and production of athletic events. MLB’s argument would be a bit like saying that Metro Goldwyn Mayer isn’t a movie company because it receives acting services and merely distributes movies that contain them. As a practical matter, MLB is more than a mere intermediary; it employs the athletes, facilitates the games, and markets them. It has no other product.

The other, more notable problem with MLB’s letter is how it frames itself and its teams. Here, it cites from a press release during the passage of the tax reform law.

“The Tax Cuts and Jobs Act includes specific safeguards to prevent tax avoidance and help ensure taxpayers of all income levels play by the rules under this new fairer, simpler tax system. Our legislation will ensure this much-needed tax relief goes to the local job creators it’s designed to help by distinguishing between the individual wage income of NBA All-Star Stephen Curry and the pass-through business income of Steve’s Bike Shop.” (Ways and Means release, November 2, 2017).

The boldface and underline were placed there by MLB. Now, there is, of course, a legal distinction they’re trying to make: Steve’s Bike Shop is a pass-through entity, while Stephen Curry isn’t. And yes, there is a certain legal merit to that position – but I find that particular example to be pretty disingenuous. MLB is comparing itself and its teams to Steve’s Bike Shop and distancing itself from Stephen Curry, who is the example of someone so rich he shouldn’t receive a tax cut. But at the same time, Steve’s Bike Shop doesn’t employ Stephen Curry, while MLB teams employ professional athletes like Stephen Curry. MLB is a national enterprise and its teams are hardly a local bike shop; they are by no means a small business, nor are they a “Main Street” job creator. To use professional athletes as an example of people who do not need the deduction, whilst arguing that its billionaire owners do, smacks of bad faith, and is something the MLBPA should perhaps take notice of.

Finally, it’s worth noting that MLB isn’t alone here. Entertainment content writers are also lobbying the IRS using a similar argument. Both spend much of their submissions talking about the intent of Congress in passing the law. That makes sense: effectuating legislative intent is generally the goal of statutory interpretation. At the same time, however, it’s not clear that Congress had any intent on this issue.

Mark Prater, who was the lead Senate staff author of the provision, said he doesn’t recall explicit conversations about whether pro teams would qualify.

Oops.


The Angels, Anaheim, and the Ongoing Stadium Wars

Back in February 2017, Los Angeles Angels of Anaheim owner Arte Moreno stated at a press conference that he and the team were committed to the city of Anaheim and would remain there through at least 2029. So steadfast was Moreno’s assurance that the Los Angeles Times’ Pedro Moura headlined his coverage of the press conference with the Moreno’s promise: “Angels to Stay in Anaheim through at least 2029.”

The franchise holds the right to opt out of its Angel Stadium lease in 2019 and has long been considering a move within Orange County around that. But no suitable location has been found, so they will stay.

What a difference a year and a half makes. In the biggest playoff-busting opt-out news since Alex Rodriguez upended the baseball world during the World Series in 2007, the Angels announced they were opting out of their lease for Angels Stadium. The LA Times‘ Bill Shaikin passed along the team’s reasoning.

“As we look to the future, we need the ability to continue to deliver a high-quality fan experience beyond what the original lease allows,” Angels President John Carpino said in a statement. “It is important that we look at all our options and how we can best serve our fans now and in the future.”

The Angels will be required to vacate the stadium after the 2019 baseball season unless a new deal is reached. This was Anaheim’s reaction.

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The Astros Were Caught Doing… Something

Before the Astros were dispatched from the playoffs by a changed-up David Price, before Jose Altuve was robbed of a home run by Mookie Betts and possibly Joe West, there was a kerfuffle in the Red Sox-Astros League Championship Series — a kerfuffle involving, of all things, a camera, trickery, and a media credential. Per Dan Shaughnessy:

The 2018 American League Championship Series took on a new dimension at Minute Maid Park this week when the Boston Metro first reported that a guy with a camera working for the Astros was kicked out of the photographer’s well by the first base dugout at Fenway Park during Game 1. Turns out the same guy got the heave-ho in Cleveland when the ’Stros were beating up on the Tribe in the Division Series.

MLB investigated, and then explained:

In other words, the Astros were surveilling the Red Sox to make sure that the Red Sox weren’t surveilling the Astros. That has something of the absurd about it, but who knows? Maybe that is, in fact, what happened.

But there are a lot of unanswered questions. The first is why the Astros used Kyle McLaughlin, a friend of Astros’ owner Jim Crane but not an Astros employee, to monitor the BoSox. And second, MLB conspicuously didn’t address that this wasn’t the first time this postseason that McLaughlin had been caught monitoring an opposing team with his cell phone; he was doing the same to the Indians during the Division Series. Jeff Passan had a typically excellent explanation of the questions MLB’s lack of action left in its wake.

The league offering Houston the free pass enraged executives around baseball, who reached out to Yahoo Sports trying to understand the rationale. If the Astros were allowed to monitor another team’s dugout in-game without penalty, one wondered, shouldn’t every team be allowed to do the same? If the Astros were so concerned with opponents’ nefariousness, another said, why did they send a kid in his early 20s whose role with the team is opaque and not simply request MLB send a security professional to examine the dugout from the same spot and ensure everything is above board? Most of all, taking at face value the Astros’ explanation for using McLaughlin, if there is a rule forbidding in-game technology to help steal signs, why is a team allowed to use in-game technology to investigate whether its opponent is illegally stealing signs?

We can answer at least a couple of Passan’s questions here. First, there is no official rule that bars sign-stealing. There’s no such provision in the Major League Rules, and there’s no such rule in the Official Baseball Rules. There’s also no provision in either concerning the use of technology to monitor another team. In short, there isn’t a rule covering this. David Schoenfield summarized the state of the rules in this area last year, after the Red Sox and Yankees famously tangled over the Apple Watch incident.

It is not illegal to steal signs. There is no rule against it, and certain players and coaches excel at the art. There is, however, a directive dating to 2001 that prohibits the use of electronic devices in the dugout or the use of binoculars. The use of the Apple Watch would clearly violate this directive.

That directive, it should be noted, isn’t publicly available, so we don’t know what its scope is. But MLB hasn’t exactly clamped down on the use of binoculars since then — and note that Schoenfield says that the Apple Watch in the dugout violated the directive. That’s because the directive evidently concerns the use of electronic devices in the dugout. McLaughlin, of course, was not in the dugout. So it is entirely possible — and I’d even say probable — that there isn’t technically a rule against what McLaughlin did, which explains MLB’s decision to wave it away.

There are two problems with this resolution, however. First, there’s no clear line regarding what use of electronics is and isn’t permissible — besides, perhaps, inside the dugout walls. That can lead to uncomfortable situations, like this one earlier this year in which the Astros found themselves on the other side of the issue.

An Astros official confronted a Yankees employee operating a high-tech camera during their late-May series at Yankee Stadium, leveling a charge of cheating and threatening that the culprit would be barred from working in the major leagues for life.

The matter was quickly defused when the Yankees proved that the Commissioner’s Office already had given its blessing for use of the camera.

And what about non-electronic means?

This is not the first investigation into the Astros’ attempts to gain competitive advantages this season, three sources told Yahoo Sports. During a late-August game against Oakland, A’s players noticed Astros players clapping in the dugout before pitches and believed they were relaying stolen signs to pitchers in the batter’s box, sources said. The A’s called the league, which said it would investigate the matter. It’s unclear what the result of the investigation was or whether it remains ongoing. Two major league players said they have witnessed the Astros hitting a trash can in the dugout in recent years and believe it is a way to relay signals to hitters. The Los Angeles Dodgers also believed the Astros were stealing signs during the World Series last season, according to two sources.

Remember, however, that there is no rule against sign-stealing generally. And that means that so long as the clapping or trash can signals were non-electronic, the Astros are technically not violating any rules. And that leads us to the second problem with MLB’s ruling: McLaughlin arguably broke the law. That’s because of something called a license. Not the driver’s license kind. It’s something else.

In the British common law (and, again, this oversimplifies things), there are many different types of ways to legally enter real property. Most often, you think of leases (when you rent a property, or essentially “buy” the right to possess that property for a limited period). But there’s a more limited type of access right called a “license.” Essentially, a license is when an owner allows you a short-term access to a property for a limited purpose. When you go to the movie theater and buy a ticket, you’ve purchased a license to be present for the duration of the movie. It’s similar with a baseball game: by buying a ticket, you purchase the right to be present in the stadium for the duration of the baseball game. If you were to get in without the license (i.e., without buying a ticket), you’d be trespassing. If you stay afterwards to build a yurt, you’re also trespassing, because the license doesn’t allow you to build a yurt whilst there. A media credential is similar. With it, a writer or photographer can do their job. What they can’t do is build a yurt.

Now, there are a few things that a license allows. It allows you to watch the game, of course, but it isn’t limited to just that. It allows you to eat, and use the washroom, and walk around the stadium. But there are limitations on what you can do while there, and it’s reasonable to assume that espionage isn’t one of them. In other words, it’s likely a violation of the license agreement to enter the stadium and begin recording the game for the purposes of relaying data to one of the dugouts.

It’s not, of course, that simple. Teams allow advance scouts into games, for instance, and they aren’t exactly there for pleasure (although watching a baseball game is undoubtedly pleasurable). But at the same time, advance scouts aren’t directly impacting the game they are watching. (I am well aware that this is not the case at the quantum level.) Instead, advance scouts are watching the game like you and I are; they are just recording the information differently. McLaughlin, on the other hand, wasn’t there to watch the game, and he wasn’t a team employee. In theory, then, he was just a trespasser.

I highly doubt that the Red Sox or Indians will press charges. But it is something about which teams should be cognizant. There is a line past which surveillance of an opponent may well become illegal, depending on who the spy is and where they are situated. The Astros may have gotten lucky this time.


David Price’s Playoff Problem Might Be a Cutter Problem

It’s perhaps easy to forget, given his postseason woes and the presence of a dominant left-handed rotation mate, but David Price remains, at age 33, among the premier starting pitchers in baseball. Price, in his career, owns a 3.34 FIP, 80 ERA-, and 82 FIP-. (For comparison’s sake, Justin Verlander is at a nearly identical 80 and 81, respectively.) Even in his injury-shortened 2018, Price still approached three wins, and his 24.5% strikeout rate in 2018 remains among top-25 marks in the major leagues.

Though he’s now a couple of years removed from his prime — during which he rattled off seven seasons of 4 WAR or more — he retains a five-pitch arsenal, three of which (fastball, cutter, and sinker) posted positive run values this year. He doesn’t throw as hard as he used to — Father Time is, after all, undefeated — but a 93 mph fastball and an above-average cutter and sinker should still be enough to get hitters out. They were, after all, during the regular season.

Except that, in his postseason career, David Price has posted a 133 ERA-, 115 FIP-, and -0.92 WPA. In 2018, in the postseason, Price has a 222 ERA- and 259 FIP-, “good” for a -0.38 WPA. In other words, David Price, regular-season ace, makes his teams worse in the playoffs. Price’s failures in the postseason are by now a well-known narrative. The Wall Street Journal‘s Brian Costa and Jared Diamond called Price’s playoff misery one of “the Great Mysteries of October Baseball.” After the Sox’ October 6 loss to the Yankees in the Division Series, Bob Nightengale openly wondered if Price would even start again in the playoffs.

Let me start by saying that I am very much a lawyer, and not what one might term a “sabermetrician.” In other words, I profess no great or singular skill, unlike Dan Szymborski or Jeff Sullivan or Jay Jaffe. What I do have, on the other hand, is a healthy curiosity for this game we call “baseball,” and more specifically why things happen the way they do. Lawyers like patterns and predictability. We dislike anomalies. David Price is an anomaly.

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Jose Reyes Has Been Honored for His Off-Field Behavior

Known primarily for his work as the former executive director of the MLBPA, Marvin Miller was an NYU-educated economist by training. His efforts as union head eventually led to the elimination of the reserve clause and start of free agency for MLB players. It was Miller who negotiated the players’ very first collective bargaining agreement, brought arbitration to professional sports, and did all of this despite contending with anti-semitism from the team owners on the other side of the bargaining table and a disability leaving him with limited use of his right arm. Miller was called by Hank Aaron “as important to the history of baseball as Jackie Robinson.”

In light of Miller’s relevance to the livelihoods of its members, it’s not surprising that the MLBPA makes some effort not only to preserve his legacy but also to honor those who continue it. To that end, the union gives an award every year for off-field service and community leadership. The Marvin Miller Man of the Year Award, started in 1997 and rebooted in 2000, is considered “one of baseball’s top honors[.]” The award is based on popular vote by the players, with the recipient being the teammate whom the voters “most respect based on his leadership on the field and in the community.” Each team has its own top vote-getter honored by the MLBPA.

In 2017, the list of top vote-getters contained an impressive collection of players notable not just for their exploits on the field, but for their charity work off of it, as well.

Among [2017]’s nominees are players involved in providing clean water and other necessities to poverty-stricken villages in remote parts of the world, supporting the needs of servicemen and women and their families, building schools, ensuring clothing and meals for inner-city poor,  raising funds for research and respite to cancer victims and their families,  rescuing abandoned and mistreated animals,  and sending truckloads of emergency supplies to victims of natural disasters.

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Lenny Dykstra Was Indicted Again

Art imitates life, and vice versa. I wouldn’t presume to call the words I scribble on these electronic pages “art” — and yet they, too, seem to imitate life. You see, way back in February, back before 26 of baseball’s 30 teams had been eliminated and hope still sprang eternal, I wrote about former Mets and Phillies outfielder Lenny Dykstra and his fantastic claims of extorting umpires. Dykstra, it should be noted, took a surprising amount of pleasure in what was, if true, undoubtedly an illegal exercise.

Now, on the topic of the former illegal exercise, one finds the following recent reprot:

To be fair, this isn’t Dykstra’s first run-in with the criminal justice system.

Since retiring from baseball, Dykstra has served prison time for bankruptcy fraud, grand theft auto and money laundering, and he declared bankruptcy in 2009, claiming he owed more than $31 million and had only $50,000 in assets.

Cocaine and methamphetamine charges don’t represent new territory for an ex-ballplayer: Esteban Loaiza pled guilty to the same this past August. A so-called “terroristic threat” would appear to be something altogether different, though.

Under Section 2706(a) of Title 18 of the Pennsylvania State Code, the crime of “terroristic threats” is defined thusly:

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The Dodgers’ Other Legal Matter

Earlier this week, I examined the federal grand jury probe currently looking into possible misdeeds by the Los Angeles Dodgers in Latin America. Even in a best-case scenario, it would appear as though the organization (or, at least, individuals associated with the organization) is in some real trouble.

According to a report yesterday from the Daily Beast’s Adam Rawnsley, however, it would appear as though the Dodgers have been named in conjunction with a completely different matter, as well. From Rawnsley’s piece:

The email from the manager of a Hampton Inn in Glendale, Arizona, stunned the Los Angeles Dodgers. A minor-league player recently signed by the team had been accused of harassing and then sexually assaulting a hotel housekeeper. The situation, the manager wrote, was “unacceptable.”

“I guess for a few weeks now [the player] has been making remarks and asking her to go out with him,” the manager wrote in an email to a team official that was obtained by The Daily Beast. “She keeps telling him that she has a boyfriend and is not interested but he still keeps making comments. . . . On Sunday things elevated where she was cleaning another room and he came up behind her and grabbed her,” the email continued. “She pushed him back and he came back and grabbed her yet again. She told him that she wasn’t interested and that he needed to leave and he did.”

While the unnamed minor leaguer’s conduct is certainly worthy of some attention in and of itself, the incident is perhaps even more notable both for (a) the Dodgers’ behavior in its wake and (b) the larger implications for domestic-violence policy (or its absence) in the minor leagues.

Regarding the first of those points, Craig Calcaterra provides some further information.

According to internal emails, the Dodgers investigated the incident and, by all indications, believed the maid’s account. High-ranking officials were in the loop, including then-head of player development Gabe Kapler who said in an email that he was “embarrassed for our organization.” Another Dodgers official said that the player was lucky not to be in jail. The police were not called, it seems, as the maid did not wish to alert authorities.

As to the housekeeper’s motivations for not reporting the incident(s), I won’t address that here. There are many possible reasons. If one takes as credible the maid’s account of events, however — which the Dodgers themselves appear to have done — it’s likely that the unnamed minor leaguer’s conduct amounts to a criminal act of some kind (which is relevant for reasons I’ll discuss below).

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The Dodgers Might Be in Actual Legal Trouble

Last week, we talked about a federal grand jury probe currently investigating Major League Baseball’s activity in Latin America. At the time, it appeared that the signing of Hector Olivera seemed to be a significant part of that investigation. Thanks to Carl Prine and Jon Wertheim of Sports Illustrated, we now have a much better idea of the matters at which that grand jury is looking.

Collectively, the documents [provided to the Grand Jury] offer a vivid window into both this netherworld and the thermodynamics of the operation: How Caribbean smugglers traffic Cuban nationals to American soil, using third-country way stations. How the underground pipeline ferries Cuban players to stash houses in countries like Haiti and Mexico before they can seek lucrative contracts with MLB clubs. How teams interact with buscones, the unregulated street-level agents who often take a financial stake in Latin American players.

The dossier given to the FBI suggests the extent to which some MLB personnel are aware of—and brazenly discuss—this unscrupulous culture and the potential for corruption. While both the league office and other teams are mentioned in the files obtained by SI, the Los Angeles Dodgers, a franchise with extensive scouting and development operations in the Caribbean, figure most prominently in the dossier[.]

Prine and Wertheim provide a detailed piece that’s is worth your time. Whitney McIntosh also published a helpful summary of their work for SBNation. A couple of interesting points jump out of their reporting, however. First, the Grand Jury and FBI are already evidently receiving at least some cooperation from important witnesses.

SI has learned that multiple alleged victims of smuggling and human trafficking operations have already given evidence to law enforcement agents or testified before a federal grand jury.

Second is that the Dodgers are evidently a prime target of the probe.

One particularly remarkable document shows that Dodgers executives in 2015 went so far as to develop a database that measured the perceived “level of egregious behavior” displayed by 15 of their own employees in Latin America. That is, using a scale of 1 to 5—“innocent bystander” to “criminal”—front-office executives assessed their own staff’s level of corruption. Five employees garnered a “criminal” rating.

***

Internal communications by the Dodgers show concerns about what team officials called a “mafia” entrenched in their operations in the Caribbean and Venezuela, including a key employee who dealt “with the agents and buscones” and was “unbelievably corrupt.” Other personnel were suspected of being tied to “altered books” or “shady dealings,” according to the documents.

We can all agree that analytics are wonderfully useful. For those who have plans of participating in international organized crime, however, please note that crafting charts to depict one’s level of criminality is unwise — as is openly discussing one’s own personal mafia.

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The Weak Spot in the League’s Domestic-Violence Policy

The end of the Cubs’ season came earlier than expected, with the North Siders finding themselves unceremoniously dispatched from the playoffs by the Rockies in the Wild Card Game earlier this week. Addison Russell, once regarded as vital cog in an emerging Cubs dynasty, was absent from the roster for that game, confined instead to administrative leave. The next day, Major League Baseball announced that Russell would be suspended for 40 games, including the 12 games already spent on administrative leave, to be enforced at the beginning of the 2019 season. In essence, Russell will miss all of April.

Word is already circling that the shortstop has played his last game with Chicago. Russell, for his part, agreed not to appeal. “After gaining a full understanding of the situation I have concluded it’s in the best interest of my family to accept MLB’s proposed resolution of this matter. I wish my ex-wife well and hope we can live in peace for the benefit of our child.” Part of that resolution — the one marked by the phrase “agreed not to appeal,” which appears in Manfred’s statement above — is something I’ve addressed before when discussing Roberto Osuna’s suspension.

We learn here not that [Roberto] Osuna decided not to appeal but rather that he agreed not to appeal. Osuna, in other words, effectively settled his case with MLB, agreeing to a shorter suspension in exchange for not appealing. This sort of resolution isn’t necessarily dissimilar to a plea bargain or civil settlement, both of which have their utility. It’s an open question, however, whether baseball’s accused domestic abusers ought to have a say in their own discipline, particularly when that discipline is being enforced by their employer. And Osuna’s case isn’t an isolated incident; rather, it’s standard policy. The same thing happened with Aroldis Chapman, for example.

FanGraphs’ own Jeff Sullivan arrived at a logical conclusion following the announcement of Russell’s punishment:

On one level, Sullivan’s point makes sense: Osuna received a harsher sentence than Russell, ergo Osuna must have done something worse. Because we have a firsthand account detailing Melisa Reidy-Russell’s allegations against her ex-husband, we then also (hypothetically) have some kind of baseline for the sort of penalty his disturbing behavior warrants by the terms of the league’s domestic-violence policy. The Commissioner determined that Russell violated the policy, just as he determined Osuna violated the policy. Presumably, those determinations were supported by evidence; otherwise, the players would never have agreed to not appeal the discipline.

But that leads to another problem, one to which Michael Baumann alluded recently at The Ringer:

The details of the suspension aren’t the important part of this case. In fact, this process is so common that it’s taken on a tragic roteness. The 40-game ban — which is retroactive to the start of Russell’s time on administrative leave, September 21 — will invite comments about how MLB punishes first-time PED violations more harshly than players suspended under its domestic violence policy. It also raises questions about how Russell’s case is different from that of Astros closer Roberto Osuna, who earned a 75-game suspension — does MLB believe that there’s some sort of graduated scale of badness for intimate partner violence?

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A Federal Grand Jury Is Investigating Major League Baseball

While the rest of the baseball world was focusing on #TeamEntropy, news broke this past weekend that Major League Baseball is currently the subject of a federal grand-jury investigation targeting the league’s business practices in Latin America. Jeff Passan’s report on the investigation is well worth the read, but this passage in particular highlights the broad scope of the probe:

A federal grand jury is looking into Major League Baseball teams’ international dealings and has issued subpoenas to club officials and other personnel involved in the transactions, three sources familiar with the probe told Yahoo Sports. Agents from the FBI have spearheaded the investigation, according to sources familiar with it, and lawyers from the Department of Justice who specialize in Foreign Corrupt Practices Act cases – which typically involve bribery of foreign officials – are involved as well. While the target of the inquiry could not be confirmed by Yahoo Sports, sources said investigators have subpoenaed at least one former Atlanta Braves official as well as people involved with the signing of Cuban star Hector Olivera, who agreed to a deal with the Los Angeles Dodgers before being traded to the Braves. Multiple witnesses have agreed to cooperate with the investigation, according to sources.

This has the potential to emerge as one of the more notable developments concerning Major League Baseball since the end of the Steroid Era. To understand why, let me start by discussing the significance of a grand jury. If you’ve ever served on a jury or received a summons for jury duty, odds are really good that your paperwork contained language including “petit jury.” A petit jury isn’t one that’s really tiny or consists of a dozen Jose Altuves. Instead, it’s a jury assembled to determine issues of fact at a trial. It’s also the only kind of jury with which most people are familiar.

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On Addison Russell and What Constitutes Evidence

Recently, Cubs shortstop Addison Russell was placed on administrative leave in response to a blog post by his ex-wife, Melisa Reidy-Russell, detailing abuse she allegedly suffered at his hands. She’s since added additional context to her blog post with this interview today. In between, Ken Rosenthal reported the following:

Major League Baseball did not place Cubs shortstop Addison Russell on paid administrative leave solely because of a blog post written by his former wife, Melisa Reidy.

The post alone would not have been enough for baseball to force Russell off the field under its joint domestic violence policy with the players’ union. The league had additional credible information, according to sources familiar with its investigation.

The league’s investigation includes interviews with Reidy and numerous other witnesses, and with officials gathering additional information since Russell went on leave, sources said.

While Rosenthal’s reporting is consistently excellent, it appears as though his statement here is slightly inaccurate, or at least incomplete. The plain language of MLB’s Joint Domestic Violence, Sexual Assault and Child Abuse Policy appended to the Collective Bargaining Agreement states that an accusation, without more, is sufficient to place a player on administrative leave.

Under the Basic Agreement, the Commissioner may immediately place a Player accused of a Covered Act on Administrative Leave, effective as early as the date of the Notification, and may keep the Player on Administrative Leave for up to seven (7) days, including the date of Notification, subject to the Player’s right to challenge that decision set forth below.

What seems likely is that Rosenthal is referring to MLB’s recent extension of Russell’s leave past 30 days, which, theoretically, does require additional evidence. Again, from the Joint Policy:

The Commissioner’s Office may ask the Players Association to consent to a one-time extension of the initial seven-day Administrative Leave period for an additional seven (7) days (for a total of fourteen (14) days), which consent shall not be unreasonably withheld. Alternatively, the Commissioner’s Office may defer placing the Player on Administrative Leave until the Player is either charged with a crime by law enforcement, or the Commissioner’s Office receives credible information corroborating the allegations.

This seems to be the confusion: for longer than seven days, additional evidence is required. For less than seven days, it’s not. It’s a minor point, perhaps. In the grand scheme of things, it’s not very significant.

Why I’m mentioning it here, however, is because — due to a very loud conversation occurring in our country at the moment, one that is riddled with all manner of misinformation and self-interest — there’s probably some merit to reviewing, under somewhat more sober conditions, how the law treats personal accounts like the one provided by Reidy-Russell on her blog.

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Roberto Osuna’s Legal Case Is Over

On Tuesday, Astros reliever Roberto Osuna agreed to a deal to bring to a close the legal proceedings pending in Ontario for charges filed against Osuna for assault stemming from a domestic-violence incident that occurred earlier this year.

Per ESPN:

A domestic assault charge against Houston Astros closer Roberto Osuna in Toronto was withdrawn on Tuesday.

In exchange, Osuna agreed to a peace bond, which requires him to not contact the woman he is alleged to have assaulted and to continue counseling. He must comply with the conditions of the bond for one year or face criminal charges, which would carry a maximum sentence of up to four years’ imprisonment.

The bond was worth $500. At least according to one Associated Press report, the impetus behind the deal was that the complainant, Alejandra Román Cota, was unwilling to return to Canada to testify against Osuna.

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The Law of Tanking, Part Two

After part one of this series, many of you began debating whether, under Major League Rule 21(a), tanking — that is, deliberately conceding a season for the purposes of experiencing success in later seasons — was barred by the same Rule which bars deliberately losing a game. I’d like to address that matter here.

To refresh our memories, Rule 21(a) says this:

(a) MISCONDUCT IN PLAYING BASEBALL. Any player or person connected with a Club who shall promise or agree to lose, or to attempt to lose, or to fail to give his best efforts towards the winning of any baseball game with which he is or may be in any way concerned, or who shall intentionally lose or attempt to lose, or intentionally fail to give his best efforts towards the winning of any such baseball game, or who shall solicit or attempt to induce any player or person connected with a Club to lose or attempt to lose, or to fail to give his best efforts towards the winning of any baseball game with which such other player or person is or may be in any way concerned, or who, being solicited by any person, shall fail to inform the Commissioner (in the case of a player or person associated with a Major League Club) or the President of the Minor League Association (in the case of a player or person associated with an independent Minor League Club) immediately of such solicitation, and of all facts and circumstances connected therewith, shall be declared permanently ineligible.

To understand this in context, imagine (if you will) a scenario in which the 2018 Baltimore Orioles made a deal with the Devil at the All-Star break. As part of that deal, the Orioles agreed to voluntarily lose 90% of their games in the second half of the season. In exchange, Mephistopheles would agree to give the Orioles 95 wins and a playoff berth in 2021.

On the one hand, that would appear to violate the Rules, right? Indeed, we established last time that a team (including its front office, not just the players) can’t try to lose on purpose. On the other hand, this deal with the Devil isn’t all that different, practically speaking, from the efforts by a club to sell off assets at the trade deadline, is it? By trading Manny Machado, the Orioles made themselves deliberately worse — and less likely to win games in the second half — in hopes of winning in the future. But then, that can’t be right, because front offices don’t get barred from strip-mining their rosters in search of prospect gold.

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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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