Author Archive

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

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September 20, 2018

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 Acuna, Peter Alonso, Vladimir Guerrero Jr., Eloy Jimenez, Gleyber Torres, and even Byron Buxton have all spent extra time in the minor leagues this year, in whole or part to gain their teams an extra year of contractual control.

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

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

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

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

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

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

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

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Could the Angels Really Give Mike Trout a Lifetime Contract?

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September 17, 2018

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

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

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

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

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

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

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September 14, 2018

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

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September 13, 2018

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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The Problems with Sean Doolittle’s Challenge

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September 12, 2018

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

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

https://twitter.com/HeartofMLB/status/1037405607773564928

Awesome! Bat flips are awesome. Like this one.

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

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

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

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September 7, 2018

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

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

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

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

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

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September 6, 2018

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

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

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

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

And this staring match with Jimmy Rollins.

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

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September 5, 2018

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

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

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

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

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

Then, last week, Mejia suddenly dropped his lawsuit.

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

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September 4, 2018

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

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

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

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

No, the Mets are not committing insurance fraud.

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The MLBPA Has a New Chief Negotiator

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September 4, 2018

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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