Major League Baseball’s new pace-of-play rules, including the new mound-visit limits, have already been covered at this site. Accordingly, this post won’t address the rules themselves. Rather, I’d like to examine what happens when a player breaks those rules — or, possibly, what won’t happen when a player breaks them.

Catchers Willson Contreras and Martin Maldonado have already said they won’t follow the new mound-visit rule. Specifically, they said they are willing to pay fines rather than comply if the game is on the line.

As a lawyer, my entire job is to research, apply, and interpret rules of one sort or other. So when I hear that two players are going to willingly not follow rules, it piques my interest. And that got me wondering… is a fine all they’d face if they did, as they said, ignore the rule and go out for that seventh visit?

The first issue is whether they’d even be allowed to go out a seventh time. Joe Torre thinks (and reports confirm) that umpires just won’t even permit the seventh visit at all. But as a practical matter, how will the umpire prevent it, exactly? It doesn’t seem that the umpire will be able to throw himself bodily in the path of every wayward catcher. So there have to be some consequences for violators. And this is where things get weird.

Read the rest of this entry »

Three years ago, Kris Bryant ranked as the best prospect in baseball. Then 23 years old, Bryant had brutalized minor-league pitching the year before and destroyed the competition in spring training with nine homers and 17 total hits in 44 plate appearances. Despite a clubhouse that now included Jon Lester and manager Joe Maddon among others — part of the Cubs’ signal to the world they were ready to compete — Bryant was easily one of the best 25 players in the organization, probably among the top five, and eventually proved during the season he was Chicago’s best position player.

And yet, the Cubs opted not to start the season with Kris Bryant on the roster. Once Bryant had spent enough days at Triple-A to extend his team control by a year — to become a free agent after the 2021 season instead of the 2020 campaign — the future MVP received a callup to the majors.

Bryant is still the most famous and most obvious case of a team’s effort to manipulate player service time to the potential detriment of the on-field product, but it happened before Bryant, has happened since Bryant, and is likely to keep happening. This season, there are several prominent players who might be kept off their major-league rosters for a time so that the team might save money and gain control of the player for an extra season.

For those unfamiliar with how service time works in these instances, here it is briefly. Players achieve free agency once they have six years of service time. Although the season lasts 187 days, a player is considered to have played a full season if he appears on an MLB roster or disabled list for 172 days. In any season where a player hits the 172-day threshold, that counts as one season of service time. If a player belongs to the roster for fewer than 172 days, he must combine those days with days from another campaign to reach the official “full season” mark.

Kris Bryant’s case is a useful example of this work. In 2015, he was on the roster for 171 days. That time counts only as a partial season. In the last two years, Bryant has been on the roster for more than 180 days each year, and each of those seasons count as one year of service time. At the end of the 2020 season, Bryant will have five seasons and 171 days of service, one day short of the six seasons necessary for free agency. As a result, he will need to play in 2021 to become a free agent. An extended discussion of service time appears in the FanGraphs glossary.

Read the rest of this entry »

Last week, colleague and attorney extraordinaire Nathaniel Grow sent me an article — specifically, an Accounting Today piece by Michael Cohn — regarding potential changes to major-league baseball trades as a result of the recent tax reform law. I decided, using that piece as a start, to determine what impact the legislation would have on MLB teams generally, if any at all.

As it turns out, the new law does impact them. A lot.

Let’s begin with some background. What we colloquially refer to as the “tax reform law” is actually more properly called by its title, the Tax Cuts and Jobs Act. The law made sweeping changes both to individual and corporate tax rates and regulations. Most of it is outside the scope of our concern here. It’s essential to remember, however, that baseball teams are all businesses. There are, of course, different types of business ownership structures — some are corporations, some are partnerships, some are limited liability companies — but the underlying point is that they are all business entities of some sort or other. And so the changes in the tax code impact how every team operates.

Now, a fair warning: this involves a discussion of tax law, which isn’t famous for producing scintillating content. Also note that what follows represents a gross oversimplification for purposes of brevity. In other words, don’t go doing your taxes based on the information provided here.

Ready? Let’s go.

Read the rest of this entry »

The State of West Virginia – or, rather, certain legislators in the State of West Virginia – have decided that they want to legalize sports gambling. This has created a kerfuffle in the Commissioner’s office, which has lobbied hard against the bill. Said Rob Manfred last Friday regarding the bill: “Major League Baseball and the other professional sports also have a strong interest, because it is, after all, our product that people are seeking to bet on… Unfortunately in West Virginia, there’s only one interested group that has dominated the substance of this bill, and that’s the gaming industry – the people seeking to make money from sports betting.” Manfred also voiced concerns that the proposed legislation doesn’t sufficiently protect gambling addicts.

Assuming West Virginia governor Jim Justice signs this bill, West Virginia will have legalized sports gambling. For our purposes, “sports gambling” means pretty much what it sounds like — things like betting on the outcome of baseball games. West Virginia wants to legalize it to make money off of it; fees and the like appended to sports gambling are expected to generate $30 million for the state’s coffers in just the first year.

Read the rest of this entry »

Today is Stacy Piagno’s birthday. If that name sounds familiar, it’s because Piagno has made some history over the last couple years, becoming (along with outfielder Kelsie Whitmore) not only the first woman to appear on a professional roster in over half a century, but also the first to win a game as a pitcher in roughly that same period of time.

Nor were Piagno’s appearances the product of a mere promotional stunt. After debuting in 2016 for the Sonoma Stompers of the independent Pacific Association, she returned to the team last year, posting a 4.20 ERA, including seven innings of one-run ball against an all-male lineup in a July 15 victory. (The Stompers, you may recall, were the subject of the excellent book The Only Rule is It Has to Work by Ben Lindbergh and Sam Miller.) The Stompers have sent several players to more advanced leagues, including to affiliated ball. Succeeding in that context isn’t a negligible feat.

Piagno and Whitmore (who’s not even 20 yet) are hardly the only women to distinguish themselves on the field against men. The Negro Leagues, which hosted some of the greatest players of all time (Cool Papa Bell, Josh Gibson, Satchel Paige) and which, by some estimates, featured a talent level roughly equivalent to that found in the NPB, also had a number of female players right alongside the men. Toni Stone hit .243, played a competent second base, and is most known for recording her team’s only hit in a game against Satchel Paige. Mamie Johnson posted a 33-8 record and a .276 batting average. (I recognize that pitcher record and batting average aren’t ideal stats, but advanced metrics aren’t really available for a lot of Negro League players.) So there is at least some precedent for women playing capably at a relatively high level.

And there’s more recent history, too. Ila Borders threw over 100 innings across four independent-league seasons between 1997 and 2000. Knuckleballer Chelsea Baker, who dominated her high school (boys’) baseball league, threw batting practice to the Tampa Bay Rays in 2014. And fellow knuckleballer Eri Yoshida held her own across both Japan and North America. There is also a National Women’s Baseball Team and the Japan Women’s Baseball League, and a Women’s baseball world cup.

The issue of women in baseball has already been addressed by writers far better than I. I’m not here to re-cover that ground. I’ve cited women’s history in the game, though, simply to establish both that women have exhibited both (a) a desire and (b) sufficient skill to play it professionally. (More on that latter point below.) What I’d like to do here is address the possibility that women have been excluded from the game — both as players and umpires — for reasons other than merit. And while I’m not the first to write about this, I’d like to take the opportunity of Piagno’s birthday to propose a legal theory by which women could potentially play affiliated baseball.

Read the rest of this entry »

Ronald Acuna is a very, very good prospect. As a 19-year-old last season, he played his way to Triple-A and recorded one of the top adjusted batting lines across the entire level. According to ZiPS, he currently projects as the fourth-best position player on the Atlanta Braves. By Steamer, he’s sixth best. Both systems regard him as the organization’s second-best outfielder.

For all this, however, Ronald Acuna will probably not appear on the Braves’ Opening Day roster.

If he doesn’t, it’s possible that Atlanta will provide a legitimate baseball reason. Given the scarcity of 20-year-olds in the majors, choosing not to roster one typically doesn’t require an elaborate explanation. There were no 20-year-old qualifiers last year, for example, or the year before that or the year before that.

But Acuna is also pretty special and, as noted, already one of the best players on his own team. If Atlanta chooses to break camp without him, it’s likely due to another reason — namely, to manipulate his service time.

Because 172 days represents one big-league season of service time, a team can leave a player in the minors until he’s capable of accruing only 170 days, thus buying the club an extra year of control. If they leave Acuna at Triple-A, the Braves will hardly be the first club to do so. The Cubs did it with Kris Bryant, the Yankees appear likely to do it with Gleyber Torres. None of this is new.

What I’d like to consider here, though, is a legal argument that might compel clubs to include these players on their Opening Day rosters.

A couple of years ago, Patrick Kessock wrote an excellent article for the Boston College Law Review in which he argued that service-time manipulation was probably a violation of the CBA. The basis of his argument was that, by keeping a player in the minor leagues for the purpose of gaining an extra year of control, the team was violating what is called the “implied covenant of good faith and fair dealing.” So: what is this covenant? And, more importantly, is Kessock right?

The “implied covenant of good faith and fair dealing” is a legal doctrine governing contracts. In a case called United Steelworkers of America v. Warrior & Gulf Navigation Co., the United States Supreme Court held that a collective bargaining agreement is “more than a contract.” But we also know from a Tenth Circuit Court of Appeals case called United Steelworkers of America, etc. v. New Park Mining Co (yes, the Steelworkers have a lot of lawsuits) that “the covenant of good faith and fair dealings which must inhere in every collective bargaining contract if it is to serve its institutional purposes.”  That’s just a fancy way of saying that the covenant of good faith and fair dealing is a part of CBAs, too.

So having established that this doctrine applies, what does it mean? You’ll remember from a previous post that we talked about Restatements, books which explain the majority rules in certain areas of the law. If we look in Section 205 of the Restatement (Second) of Contracts, we find this: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” And each Restatement has what are called “comments,” which are really explanations and examples of what the rule means. The comments to Section 205 are pretty long, so I won’t reproduce them here, but they do provide a pretty useful definition, as follows:

“Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving “bad faith” because they violate community standards of decency, fairness or reasonableness.”

It’s the “justified expectations” language on which Kessock hangs his hat. Teams, after all, are supposed to compete for championships. Kessock argues that, therefore, “[t]he MLBPA can assert that its reasonable expectation is that MLB clubs will assign players to the major league roster once club executives believe that players have reached full minor league development and can help the
team compete for a championship.”  But that might not be not so clear-cut. After all, it’s also a justifiable expectation that teams are also supposed to try to win multiple championships. Therefore, gaining that extra year of control over a good player is reasonably geared more towards that goal.

But I still think Kessock is on to something here, and there might be another way to argue this using the covenant of good faith and fair dealing. Remember that minor-league players aren’t members of the MLBPA until they get called up. And that means that, by keeping a player in the minor leagues, a team is deliberately postponing a player from becoming a member of the union for the club’s own benefit. And that (arguably) could be regarded as bad faith.

It seems to me that a viable argument can be made that it is unfair to postpone a player’s entry into the union solely for a team’s pecuniary gain. Article II of the CBA states that “[t]he Clubs recognize the [MLBPA] as the sole and exclusive collective bargaining agent for all Major League Players, and individuals who may become Major League Players during the term of this Agreement, with regard to all terms and conditions of employment” (emphasis mine). I think the MLBPA could argue, based on Article II, that its justified expectations are that MLB won’t attempt to circumvent players’ pecuniary gain by keeping them out of the union, because future major leaguers were an anticipated part of the CBA.

Now, there is an obvious counterargument: since future major leaguers were an anticipated part of the CBA, they should have reasonably expected MLB teams to do something which the CBA doesn’t expressly prohibit.  And even if a player could make the argument work from a legal perspective, there are a whole host of practical problems to solve. After all, I’ve never seen a prospect without any flaws at all (especially pitchers), so proving a prospect is being kept in the minor leagues solely for service time reasons is a tall order. Even Ronald Acuna struck out in over 30% of his plate appearances in A-ball last year, providing a plausible path for the Braves to argue he needed more seasoning in the minors. Also, we’re talking here about the player filing a grievance, not a lawsuit. Grievances take a long time to resolve: Kris Bryant, who filed one in 2015 for service-time manipulation by the Cubs, was still waiting for a resolution two years later.

But, with all that said, I do think that Kessock is right: there’s at least a plausible argument to be made that service-time manipulation violates the spirit of the CBA, if not its letter. And the spirit of the CBA is what the covenant of good faith and fair dealing is designed to protect.

Five years ago, the Los Angeles Dodgers signed an $8 billion television deal to broadcast games locally on a Time Warner cable station, SportsNet LA. While quite large, there was some precedent for an agreement of this size. By that point, the Angels, Astros, Giants, Mets, Padres, and Yankees had all received billion-dollar contracts of their own. The Dodgers’ deal is notable, however, for how poorly it worked out. Even today, half of Los Angeles can’t watch the club because Time Warner and DirecTV have yet to agree on terms to broadcast games in Los Angeles.

The combination of the Dodgers’ situation and the Astros’ own disastrous effort to create a regional sports network appeared to indicate that the RSN bubble was about to pop.

That didn’t happen, though. Not at all, really. Soon, the Mariners sold their rights for a billion dollars, followed by the Rangers, Phillies, D-backs, and Cardinals in subsequent years. The Reds likely received something close to a billion dollars for a pact that begins this season. And now even the Tampa Bay Rays seem to be getting a billion dollars of their own.

The Rays’ deal, reported by John Ourand and Daniel Kaplan of the Sports Business Journal, will begin next season and pay the Rays an average of $82 million per season over 15 years, which amounts to $1.23 billion. The Rays are set to receive $35 million in the last year of their current contract, and that will increase to roughly $50 million in 2019. Assuming a steady rise over the life of the deal, rights will increase at 6.7% annually. The Rays’ new agreement is worth significantly less than many of the others inked over the last few years and doesn’t appear to come with an ownership stake. However, the money for the Rays is an indication that tremendous value still exists in the acquisition of local rights even as the landscape of television changes.

Read the rest of this entry »

On Tuesday, the Major League Baseball Players Association filed a grievance against four major-league teams: Miami, Oakland, Pittsburgh, and Tampa Bay. Specifically, the MLBPA contends that these four teams are violating the collective bargaining agreement by misusing their revenue-sharing money.

To understand the implications of the union’s grievance, we have to begin with the language of the CBA itself. Article XXIV(A) of the CBA states that “[a]ny Club seeking a distribution from the Commissioner’s Discretionary Fund [that is, the revenue-sharing money] shall submit a request in writing to the Commissioner. The written request must include, but need not be limited to: (i) the amount requested; (ii) the use(s) to which the Club intends to put the requested distribution; and (iii) an explanation of how, in the Club’s view, the requested distribution should improve the Club’s performance on the field” (emphasis mine).

Later on, the CBA is even more explicit:

[E]ach Club shall use its revenue sharing receipts (including any distributions from the Commissioner’s Discretionary Fund) in an effort to improve its performance on the field. The following uses of revenue sharing receipts are not consistent with a Club’s obligation . . . to improve its performance on the field: payments to service acquisition debt or any other debt that is unrelated to past or future efforts to improve performance on the field; payments to individuals other than on-field personnel or personnel related to player development; payments to entities that do not have a direct role in improving on-field performance; and distributions to ownership that are not intended to offset tax obligations resulting from Club operations.

It’s that language on which the MLBPA is hanging its hat.

Now the MLBPA’s grievance will go before an arbitration panel, not a court. The rules of private arbitrations like this are generally set by the parties themselves. That can lead to some interesting quirks, like the fact that the commissioner himself serves as arbitrator in certain proceedings that are appeals from his own decisions (the interest-of-the-game clause and the like). In this case, the grievance hearing will be conducted in accordance with the Rules of Procedure laid out in Appendix B of the CBA.

Those Rules are pretty lengthy, so here are the pertinent bits: the legal rules of evidence don’t apply, the arbitration panel sets its own standard of proof (in other words, how much evidence one side needs to present to win), and it’s possible to avoid a hearing altogether just by both sides agreeing to submit legal briefs. Also, there are three arbitrators: one selected by the MLBPA, one selected by MLB, and a neutral third party who is usually a lawyer with some experience in conflict resolution and who serves as the panel chair. That means that, as a practical matter, it’s the panel chair who decides these cases.

Read the rest of this entry »

Spring training is here. It’s a new beginning! Every team has optimism for the coming season. (Well, almost every team. Sorry, Marlins fans.) But in this time of beginnings, we also have an ending. Specifically, this will be the last spring training — and the last season — with Chief Wahoo. Beginning in 2019, the Indians will no longer use the symbol on their uniforms.

In one sense, the move has seemed inevitable for a while now. Cleveland has been phasing out Chief Wahoo for years in the face of increasing public pressure from people who believe the logo is racist. I don’t intend to comment on that matter in this piece. You’re all intelligent people and can draw your own conclusions.* Instead, I’m going to focus on whether the Indians legally had to remove Wahoo and what the symbol’s removal means for other teams (like the Braves) who use Native American imagery.

*For what it’s worth, research suggests that mascots and logos such as Chief Wahoo are psychologically harmful to Native American youth.

As an initial matter, the traditional use of Chief Wahoo as a logo is generally fully protected by the First Amendment, even if certain individuals regard it as offensive. The Supreme Court has held in cases like R. A. V. v. St. Paul that it’s illegal to ban speech (which includes symbols) simply because it’s offensive. But the Indians are a business, and that makes things a little more complicated.

To take a look at this, we’re going to have to enter into an area of law known as “intellectual property”: trademarks, trade dress, copyrights, and patents. Each protects different things: trademarks protect trade names and logos; trade dress protects a certain product’s label and appearance; copyrights protect creative works; and patents protect ideas like inventions. (There’s a pretty decent overview of the differences here.) For our purposes, let’s oversimplify things and discuss the trademark that applies to both the team name and Chief Wahoo.

Read the rest of this entry »

We’ve heard all offseason that baseball teams are getting smarter. One of the strategies employed by those smart teams is to wait players out in free agency to get good deals. Todd Frazier signed for two years and $17 million, Eduardo Nunez received only $8 million in guarantees, Carlos Gomez just signed for $4 million, and Logan Morrison only received $6.5 million. Plenty of quality free agents remain, and the market isn’t looking robust. It certainly seems as though teams are winning and that the strategy of waiting has paid off.

Travis Sawchik found that the free agents who signed contracts during the early part of the current offseason ended up receiving about 5% less overall than their FanGraphs crowdsourced estimates predicted. In light of research by Max Rieper at Royals Review, that boded poorly for players. Rieper, who compared actual contract values to those estimated by FanGraphs crowdsource estimates over several years, found that players who sign early in the offseason typically fare much better (relative to the estimates) than those who sign later.

At first glance, it would appear that several prominent, recent free-agent signings seem to fly in the face of Rieper’s findings, though. As Ben Lindbergh mentioned in his recent post on the players’ share of revenue, Yu Darvish, Eric Hosmer, J.D. Martinez, all signed at or above their crowdsourced estimates. I would add the Brewers signing of Lorenzo Cain to that list, as well.

Is it possible that the waiting game hasn’t actually hurt free agents? Or is there something else going on here? With more data available, it might be time to revisit Rieper’s study with the current offseason included.

Read the rest of this entry »