Aaron Judge, Manny Machado, and the Law of Tampering by Sheryl Ring March 21, 2018 Aaron Judge is in hot water. The Yankees’ slugger and junior Tower of Power recently told Baltimore’s Manny Machado that the shortstop would “look good in pinstripes.” Major League Baseball, concerned that Judge’s comments might constitute tampering, proceeded to slap the right fielder on the wrist. Now, it’s common knowledge that Machado (a) is a free agent after the season and (b) has been connected to the Yankees before. So what, exactly, did Judge do wrong here? And what is “tampering” anyway? If you’re a fan of that other sport invented by James Naismith using soccer balls and peach baskets, you’ve probably seen “tampering” thrown around relatively often. It’s less common in baseball, but does occur. So let’s look at the Rule. You’ll find it in Major League Baseball’s Official Rules. No, not these rules. These other rules. I bet you didn’t know there were two rulebooks. Anyway, Rule 3(k) on page 43 of the latest Rulebook governs tampering, and says this: TAMPERING. To preserve discipline and competition, and to prevent the enticement of players, coaches, managers and umpires, there shall be no negotiations or dealings respecting employment, either present or prospective, between any player, coach or manager and any Major or Minor League Club other than the Club with which the player is under contract, or acceptance of terms, or by which the player is reserved or which has the player on its Negotiation List, or between any umpire and any baseball employer other than the baseball employer with which the umpire is under contract, or acceptance of terms, unless the Club or baseball employer with which the person is connected shall have, in writing, expressly authorized such negotiations or dealings prior to their commencement. And as if to reiterate that point, Section 3 of the MLBPA Regulations of Player Agents states that only agents can do recruiting. So what did Judge do wrong here? His exact words were evidently that Machado would “look good in pinstripes.” Major League Baseball evidently thought that could be construed as “negotiations or dealings respecting employment.” That appears to be true in a very literal sense. At the same time, it’s hard to believe this sort of conversation doesn’t happen all the time anyway. Tampering rules are just Major League Baseball’s codification of a rule in the law against what’s called “tortious interference with contract.” In other words, “tortious [pronounced tour-shiss, not tour-tu-os] interference” occurs when one party (Aaron Judge) knows that a second party (Manny Machado) has a contract with someone (the Baltimore Orioles) and induces that second party to breach his or her contract anyway. As far as tortious interference/tampering goes, this appears to be a very mild case of it, which is probably why MLB slapped Judge on the wrist instead of fining him. If Judge had actually discussed details with Machado — or he and his agent had stopped by Brian Cashman’s suite to discuss terms — there likely would have been a significantly different response. “You’d look good in pinstripes” is the type of conversation one imagines occurring about a dozen times during every All-Star game. The ground for a lawsuit are pretty thin in such cases. Machado never breached his contract with the Orioles, and the fact that he’s in his contract year is common knowledge. The reasonable inference is that Judge wanted Machado to join the Yankees on his next deal. But at the same time, there’s a decent case to be made that — in the context of sports contracts and only sports contracts — tampering should be legal. Now, let me be clear: I am not advocating for an end to the tort of tortious interference. Instead, I think that allowing for public recruiting is a good thing. I’m not the first to make this argument — a similar one was made by Nick Greene of Slate last year — but I think it’s valid one. Here’s why. The NBA vigorously enforces its tampering rules. The result is supposed to be greater parity, but the NBA is nonetheless in the midst of a “superteam era.” You need multiple superstars to win, and the result has been behemoths like the Golden State Warriors and Houston Rockets. And stars still openly recruit each other. MLB is also at the beginning of what could be characterized as a superteam era, with star-studded rosters clubs the Astros, Dodgers, and Yankees at one end and tanking teams like the Marlins, Tigers, and White Sox on the other. The Orioles likely won’t be able to keep Machado at season’s end. As Greene put it: [The Tampering Rule] ostensibly exists to maintain competitive parity, as the league wants good players to stay with the organizations that drafted them. One way it does this is by allowing teams to offer existing players contracts that are loaded with financial incentives. The other way is by threatening to punish those who try to lure these players away. It’s telling that both these strategies protect ownership rather than the players. . . . Players are making long-term life decisions worth tens of millions of dollars. Why should we expect them to wait until the free agency bonanza’s midnight starting gun to feel out the market? Greene has a point. Remember that players don’t just cash checks and swing bats: they uproot their families, have to find new homes, new schools. If I were approaching free agency, I’d want to ask my friends what they thought about various markets before I started negotiating. And while MLB certainly doesn’t enforce the tampering rule with the same vigor the NBA does, I do think that there is a line where behavior can be considered permissible, particularly because tampering protects far more than just tortious interference. If Judge had persuaded Machado to sit out games until he was dealt to the Yankees, then sure, that’s tampering. If Machado had agreed to terms with Brian Cashman already, then sure, that’s tampering. That should be punished. Just telling Machado about New York, though? Why is that bad? Buck Showalter’s response was also telling: “I’m just glad they didn’t catch Manny recruiting Judge.” Tongue-in-cheek, yes, but a bit troubling all the same. That’s for two reasons: first, that the idea of a star player telling another star player that he should come play in Baltimore was funny. And second, what would be so bad if Machado actually did that? For teams in the wilderness, whose fan bases need something to latch onto after watching player after player leave for greener pastures, perhaps there is something to be said for allowing their players to pitch stars on why it isn’t so bad to play in that market. Wouldn’t it be good for the game to see a star like Aaron Judge play in Baltimore one day? It certainly can’t hurt these teams’ ability to recruit players if their players get to serve as ambassadors. I’m willing to bet they already do so anyway; they just don’t tell reporters about it, like Judge did. But if some tampering were legal — just some — we’d at least know who is saying what and to whom. And if we’re trying to create more parity, it seems to me this is one way to actually move in that direction.