Archive for Legal

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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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 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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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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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 MLB.com’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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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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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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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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