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 said, inter 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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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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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 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.

https://twitter.com/MLBastian/status/1030557350372016128

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.

Trevor Bauer says that the doctors' timeline for his return is based on outdated mainstream medicine and he's begun a course of blood transfusions and colloidal silver to rid his body of CIA nanites. He anticipates missing two starts, three tops.

— Michael Baumann (@MichaelBaumann) August 17, 2018

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.

MLB Network falls for joke report that Trevor Bauer is treating himself for "CIA nanites" https://t.co/gw4zghSlXR pic.twitter.com/OXZmA65P2h

— Deadspin (@Deadspin) August 18, 2018

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

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

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

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

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

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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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In this week’s typically fantastic Sunday Notes column (if you don’t read them, you should), David Laurila passed along this tidbit which caught my eye:

Red Sox centerfielder Jackie Bradley Jr. was charged with an error on Friday night when he failed a handle a ball that, per StatCast, had a 6% catch probability. Bradley ran 60 feet in 4.2 seconds before having the ball carom off his glove.

That was backed up by David Adler.

Here's how good Jackie Bradley Jr. is in CF: He got such an insane jump on a ball in the gap that when he missed a running catch, he got hit with an error.

The catch probability was 6%.
He had to go 80 feet in 4.2 sec.
Most OFs don't get close enough to have the chance to miss.

— David Adler (@_dadler) August 11, 2018

Here’s the play in question:

Well, that doesn’t seem quite fair. But it’s becoming an increasing issue amongst official scorers and those who call for elimination of the error as a statistic altogether. Chris Hine, of the Minneapolis Star-Tribune wrote a great piece earlier this summer on different scorers’ approach to using Statcast: how much should Statcast data factor into the hit-vs.-error calculus? And do the Rules allow it?

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Without a doubt — and this is an objective fact — the best thing about baseball in 2018 has been Juan Soto. I mean, you could say it’s Mike Trout, because the answer to almost every baseball question is Mike Trout. But Juan Soto is probably the best teenager baseball has ever seen, and baseball’s been around a while. Juan Soto has posted a .415 wOBA and 161 wRC+, both marks fifth in baseball among players with 200 or more plate appearances. He’s outhit Aaron Judge (157 wRC+) and Freddie Freeman (143) and Paul Goldschmidt (141) and a whole bunch of other people he has no business outhitting. Juan Soto is third on the Nationals in WAR (2.7) and has played in 68 games. Trea Turner, who leads the team with 3.5 WAR, has played in 113 games. Juan Soto is so good. And he’s doing this, again, at 19 years old.

For no other reason than because Juan Soto is my favorite thing about 2018 Major League Baseball, here is Juan Soto hitting a ball to somewhere past Saturn — off fellow southpaw Chasen Shreve:

And an even more impressive dinger on a pitch that was probably off the plate inside:

Juan Soto doing Juan Soto things has brought him some degree of attention around the league, and Soto might be, at just 19, the best position player on a Nationals team that also employs Bryce Harper and Anthony Rendon. And it’s likely because of his surprising ascent that, when he came up to bat against Atlanta earlier this week, Braves announcer Joe Simpson made a comment that raised a few eyebrows. You can hear the audio here, but here’s what he said as relayed by the New York Post:

“If he’s 19, he certainly has his man-growth,” Simpson said. “He is big and strong.”

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Angel Hernandez is not considered a particularly good umpire. He’s been called, unironically, the worst umpire in Major League Baseball. Ian Kinsler said last year that Hernandez “needs to find another job, he really does.” And Kinsler’s not alone.

I will not watch a game, any game, officiated by Angel Hernandez! His incompetence amazes me and I'm tired of MLB doing squat about it! Nite

— Chipper Jones (@RealCJ10) July 5, 2013

Players 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.) So why is Hernandez considered so bad at his job? He’s probably most famous for incorrectly calling this a double instead of a home run back in 2013.

But there’s more to Angel Hernandez than blowing home-run calls. His calls at the plate aren’t great either. And his strike zone tends to be, shall we say, creative.

Like in this instance:

Angel Hernandez….not good. pic.twitter.com/BFgM9plRMt

— Justus Cleveland (@JustusCleveland) May 23, 2018

And this one:

Angel Hernandez was ready to go home pic.twitter.com/pUmINdnhNS

— Robert O'Neill (@RobertONeill31) August 5, 2018

And this one, from the World Baseball Classic:

So it’s not surprising that Hernandez has made an appearance or two in Jeff Sullivan’s “worst calls” series.

Per the rulebook, of course a strike is a strike because the umpire says it is. This is the Marbury v. Madison of baseball. But the rulebook also says a pitch is a strike based on the umpire’s discretion within certain guidelines; it doesn’t say that a pitch is a strike because the umpire feels like it. It seems like calling these pitches strikes would be an abuse of discretion; that is, not reasonable. And yet Hernandez, to the bewilderment of some, still has his job.

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